Skoljarev v Australian Fisheries Management Authority

[1995] FCA 1087

C A T C H W O R D S

ADMINISTRATIVE LAW - refusal by Tribunal to grant fishing permit under Fisheries Management Act 1991 (Cth) - failure by applicant to meet requirements of policy for grant of a permit - whether Tribunal failed to consider or give enough weight to the particular circumstances of the applicant - whether by application of policy the Tribunal abdicated its function of determining for itself whether the decision was correct or preferable - whether cogent reasons for departing from policy - whether error of law.

Fisheries Act 1952 (Cth) - s.7B(10)
Fisheries Management Act 1991 (Cth) - ss.3, 17, 32(1),
South East Fishery (Individual Transferable Quota) Management Plan 1991

P W Adams Pty Ltd v Australian Fisheries Management Authority (unreported, 11 October 1995)
Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Evans and Secretary, Department of Primary Industry (1985) 8 ALD 627
Re Musgrave and Secretary, Department of Primary Industry (1986) 11 ALD 218
Re Robinson and Secretary, Department of Primary Industry (1986) 10 ALD 302.
Re Sawyer and Secretary, Department of Primary Industry (1987) 12 ALD 523
Re Skoljarev and Australian Fisheries Management Authority (1992) 26 ALD 516
Austral Fisheries v Minister for Primary Industries & Energy (1992) 37 FCR 463
Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381
Skoljarev v Secretary, Department of Primary Industries & Energy (1994) 51 FCR 57

IVO SKOLJAREV v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
No G 281 of 1995

Davies J
Sydney
12 December 1995

IN THE FEDERAL COURT OF AUSTRALIA          )
  )
NEW SOUTH WALES DISTRICT REGISTRY         )  No. G 281 of 1995
  )
GENERAL DIVISION  )

On appeal from the General Division of the Administrative Appeals Tribunal

BETWEEN:  IVO SKOLJAREV  

Applicant

AND:  AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

Respondent

Coram:        Davies J.
Date:          12 December 1995
Place:         Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.The appeal be dismissed. 

2.The applicant pay the respondent's costs of the proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA          )
  )
NEW SOUTH WALES DISTRICT REGISTRY          )  No. G 281 of 1995
  )
GENERAL DIVISION  )

On appeal from the General Division of the Administrative Appeals Tribunal

BETWEEN:  IVO SKOLJAREV 

Applicant

AND:  AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

Respondent

Coram:        Davies J.
Date:          12 December 1995
Place:         Sydney

REASONS FOR JUDGMENT

This is an appeal from a decision of the Administrative Appeals Tribunal constituted by Deputy President B J McMahon.

The respondent, The Australian Fisheries Management Authority ("the Authority"), had refused to grant to the applicant, Ivo Skoljarev, a fishing permit authorising the use by him of his vessel for fishing in the South East Fishery ("the Fishery").  Two applications were considered by the Authority, the first in respect of the 1994 year and the second in respect of the 1995 year.

The Deputy President dismissed the application to review the decision with respect to the 1994 year on the ground that the period for which the permit had been sought had expired and the decision-making power had become exhausted.  In the light of the judgment of Sackville J in P W Adams Pty Ltd v Australian Fisheries Management Authority (unreported, 11 October 1995), this dismissal was incorrect.

The circumstances surrounding the 1995 decision and the reasons of the Authority were, however, for all practical purposes, the same as the corresponding decision and reasons with respect to the 1994 application.  The Deputy President dismissed the 1995 application on its merits and affirmed the decision of the Authority with respect to that year. 

The Fisheries Management Act 1991 (Cth) ("the 1991 Act") provides for the grant of licences under s.32(1), which reads:-

"32. (1)  AFMA may, upon application made in the approved form, grant to a person a fishing permit authorising the use of a specified Australian boat by that person, or a person acting on that person's behalf, for fishing in a specified area of the AFZ or a specified fishery."

The decision-making discretion is, however, circumscribed.

Section 3 of the Act provides for objectives to be pursued in the administration of the Act as follows:-

"3.(1)  The following objectives must be pursued by the Minister in the administration of this Act and by AFMA in the performance of its functions:

(a)implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and

(b)ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development, in particular the need to have regard to the impact of fishing activities on non-target species and the marine environment; and

(c)maximising economic efficiency in the exploitation of fisheries resources; and

(d)ensuring accountability to the fishing industry and to the Australian community in AFMA's management of fisheries resources; and

(e)achieving government targets in relation to the recovery of the costs of AFMA.

(2)    In addition to the objectives mentioned in subsection (1), or in section 78 of this Act, the Minister, AFMA and Joint Authorities are to have regard to the objectives of:

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

(b)achieving the optimum utilisation of the living resources of the AFZ;

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

Section 17 of the Act provides for plans of management to be determined by the Authority. Section 18 provides for approval of a plan so determined to be given by the Minister. Section 19 provides for the publication in the Gazette of plans which have been determined by the Authority and accepted by the Minister. Section 17(10) provides that, while a plan of management for a fishery is in force, the Authority must perform its functions, and exercise its powers in accordance with the plan.

The first plan of management ("the 1985 Plan") in respect of the South East Fishery had been introduced by way of administrative policy under the Fisheries Act 1952 (Cth) ("the 1952 Act"). This 1985 Plan specified the principal criterion for entry into the relevant area, Region A of the Eastern Sector, to be:-

"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."

This plan was, with variations, given effect to as ministerial policy during the following years. On 9 December 1991, in accordance with s.7B of the 1952 Act, The South East Fishery (Individual Transferable Quota) Management Plan 1991 ("the 1991 Plan") was promulgated. Under s.7B(10) of the 1952 Act, decisions were required to be made in accordance with the Plan and not otherwise.

On 28 July 1992, however, O'Loughlin J declared that para 11 of the 1991 Plan was void for statistical error: see (1992) 37 FCR 463. An appeal from this declaration was dismissed: see (1993) 40 FCR 381. The Minister subsequently determined that an "averaging method" should be used in place of the fallacious mathematical formula in the allocation of quotas for the remainder of 1992.

The 1991 Plan ceased to have statutory effect at the end of 1992 on the expiration of licences granted under the 1952 Act. Pending development of a new management plan under s.17 of the 1991 Act, which would have involved consultation with appropriate persons and the taking account of any representations made with respect to a draft plan, the Authority adopted the 1991 Plan and the "averaging method" as a non-binding policy to be applied in the grant of fishing permits under s.32 of the Act. No challenge has been made to the lawfulness of this course.

I need not discuss the details of the 1991 Plan or the variations in its operation which occurred.  It is not in dispute that, when he made his applications for the 1994 and 1995 licences, Mr Skoljarev did not meet with the requirements of the 1991 Plan
as he did not hold an endorsed licence to fish or an endorsed licence in abeyance and his vessel had no verified catch.

The principal issue in the proceedings is whether the Tribunal was wrong as a matter of law in applying to Mr Skoljarev's application for a fishing licence the policy laid down by the 1991 Plan or whether, as a matter of law, the Tribunal was bound to consider the matter by reference to Mr Skoljarev's personal circumstances. The case put for Mr Skoljarev was that he was a person who had a commitment to the Fishery and that the Tribunal had failed to consider his special and unique circumstances or had failed to give weight to them. 

Mr Skoljarev came to Australia in 1961.  He commenced fishing in New South Wales with a Mr Lukin, a relative.  He continued trawling in the waters of New South Wales for many years, usually during the winter season.  During the summer season he would fish for tuna off the southern coast of Australia.  From 1974 to 1975, Mr Skoljarev and his family lived in South Australia and fished only off the southern coast.  In 1978, Mr Skoljarev and his wife decided to return to New South Wales.   Between 1978 and 1981, Mr Skoljarev trawled during winter in the area which became the South East Fishery though during summer he continued to fish for tuna off the southern coast.

Mr Skoljarev did not, however, trawl in the Fishery after 1981.  After returning from a holiday in Yugoslavia, Mr Skoljarev returned to find that his trawling gear had been stolen.  His circumstances thereafter are set out in detail in the judgment of Beazley J in Skoljarev v Department of Primary Industries & Energy (1994) 51 FCR 57 and I need not repeat them. In substance, as a result of certain financial problems and a desire not only to replace his trawling gear but to undertake substantial repairs and to effect an upgrading of his vessel, Mr Skoljarev did not fish in the South East Fishery prior to the coming into operation of the 1985 Plan.

When Mr Skoljarev applied in 1985 for a 1986 licence, his application was refused on the basis that he could not "provide proof that the boat for which the endorsement is sought has continued to operate in Region A of the Eastern Sector", as required by the criterion which I have set out.  Mr Skoljarev challenged the refusal in the Administrative Appeals Tribunal.  The Tribunal, constituted by the President of the Tribunal, Hartigan J, affirmed the decision of refusal, holding that there were no special circumstances such as to warrant a departure from the entry criterion of the 1985 Plan.  This finding was made notwithstanding that Mr Skoljarev had given evidence that he had engaged in a small amount of fishing in 1985 without an appropriately endorsed licence.

Subsequently, the Department of Primary Industries and Energy discovered that the reviewing officer who had considered Mr Skoljarev's application for the 1986 licence may not have held an appropriate delegation to make a decision.  The Department came to the conclusion that the decision-making process could have been flawed and advised Mr Skoljarev that he could again seek a further internal review.  Whether or not that course was a correct one is not an issue in these proceedings.  In the further internal review, Mr Skoljarev's application was again refused and he again sought review of the decision by the Administrative Appeals Tribunal.  The matter was heard by Deputy President Gerber in Re Skoljarev and Australian Fisheries Management Authority (1992) 26 ALD 516. Deputy President Gerber affirmed the decision under review.

On 25 March 1994, Beazley J of this Court held that Deputy President Gerber had looked at the matter too narrowly: see (1994) 51 FCR 57. However, Beazley J considered that it would be futile to remit the matter to the Tribunal for redetermination since, following the repeal of the Fisheries Act 1952 (Cth) and its replacement by the 1991 Act, Mr Skoljarev had no subsisting licence to endorse. 

Mr Skoljarev later lodged applications for a 1994 licence and for a 1995 licence, and, after these had been refused, the matter came before Deputy President McMahon.

Deputy President McMahon came to the same view as had Hartigan J and Deputy President Gerber.  Deputy President McMahon concluded:-

"41.  I take into account the applicant's long history of fishing in Australia, including the period between 1978 and 1981 when he was in the South East Trawl Fishery, as it was then known.  However, that was a long time ago.  On its own, it would not be sufficient to persuade me that that history was a cogent reason for departing from policy.

42.  I have also taken into account the loss of his trawl gear.  I am not satisfied that the financial difficulties to which he referred prevented its replacement.  The fact that it could be substantially upgraded and that other repairs and refurbishment could be carried on over the same period indicate that the financial difficulties were perhaps not so acute as he now remembers them to be.

43.  I have also taken into account the financial hardship caused by the unprofitable use of the boat under present circumstances.  There is no evidence, however, that the applicant has attempted to acquire a quota from any other fisherman.  Were he to do
so, his entry into the fishery would be assured by the entry criteria.  He is a man of business as well as being a fisherman.  He understood the management of a tuna quota by leasing it out for one year and selling it in another year.  There was evidence of a secured loan which he made to persons conducting the business of a hotel, who subsequently became bankrupt.  There is evidence of property dealings which the applicant and his wife have had over the years and of the fact that they currently own 4 residential flats at Port Stephens.  It is, to some extent, up to the applicant whether he improves the financial viability of his fishing enterprise.  The permit which he seeks is not the only method available to him to improve the return on the capital invested in his boat.  The fact that he could earn $350,000 per year if granted the permit is, in itself, not a cogent reason for departing from policy.

44.  In all the internal and external reviews of the applicant's relevant circumstances, there has not been one finding which could justify a departure from the application of policy to the applicant's case.  I find myself in agreement with the previous decision makers although, of course, I am not bound by their decisions or by their reasons for decision.  I have come to my own conclusion independently.  I am satisfied that there are no cogent reasons shown to support a departure from the application of policy.  The 1995 decision under review is therefore affirmed.  The application relating to the 1994 decision is dismissed."

The issue with which the Deputy President had to deal was similar to that which was considered by this Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, where the Court set aside a decision of the Administrative Appeals Tribunal, constituted by Davies J, on the ground that it appeared that too much weight had been given to ministerial policy and that the Tribunal had abdicated its function of determining for itself whether the decision was the correct or preferable one. When the matter went back to the Administrative Appeals Tribunal for rehearing in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, the Tribunal was constituted by Brennan J, then the President of the Administrative Appeals Tribunal. In his reasons for decision, Brennan J enunciated the many reasons which make the adoption of a policy a desirable, indeed a necessary feature, in administrative decision-making. At 639, Brennan J. said:-

"Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice."

At 640, Brennan J said:-

"There are powerful considerations in favour of a Minister adopting a guiding policy.  It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another.  Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy.  By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.". 

Brennan J explained why the Administrative Appeals Tribunal itself was not the appropriate body to enunciate a broad policy.  At 644, Brennan J said:-

"Although the practice of giving reasons for decisions inevitably spins out threads of policy from the facts of the cases, the policy developed in this way originates in the need to ensure that justice is done in individual cases, and it is a different development from a ministerial declaration of broad policy relating to the generality of cases.  The Tribunal is no doubt able to refine a broad policy, but the laying down of a broad policy on deportation is essentially a political function, to be performed by the Minister who is responsible to the parliament for the policy he adopts." 

In his exposition of  the importance to society of structured decision-making, Brennan J was, as he said, influenced by the work of Professor K C Davis, whose Administrative Law Treatise has had profound effect upon the approach to standards and rules in the United States.  Professor D J Galligan, in Discretionary Powers at 167 has said of Professor Davis:-

"The unrivalled pioneer in this field is K.C. Davis, who has argued that the regulation of discretionary authority is one of the most pressing issues of modern law.  Davis saw a number of values under threat from discretionary powers, but it is increasing unfairness and arbitrariness that concern him most; unfairness in the sense that similar situations are treated differently, arbitrariness in the sense that extraneous matters are taken into account." [footnotes omitted]

Matters have now reached the stage, in the United States, that rule making, which is the preferred option, has become a structured and complex process.  The latest edition of the Administrative Law Treatise devotes much of Volume 1 to the benefits of rule making and to the procedures to be adopted when doing so. 

Galligan, in his work at 177, explained the importance of policies or rules in this way:-

"Where the decision to be made is substantially one of policy, then the primary consideration is for a procedure which provides the maximum information and opinion, and which allows a broad representation of interests.  Where decisions are more clearly about how to treat a person or his circumstances, and where similar situations are likely to recur, then questions about how specific the standards are to be become highly pertinent.  It has been shown that various factors affect that issue, so that no firm conclusion of a general kind can be drawn.  If this seems rather lame, then I would go a little further and agree with Davis's general argument that there is a strong, initial case in contexts of individualized, recurring decisions for reasonably clear and settled standards."

Galligan there distinguished between two uses which rules or principles may serve.  One is to enunciate and implement political or governmental policy.  The other is to state principles in the light of which recurring, individualized decisions can be made and against which decisions can be assessed.

I have spent some time on this matter to emphasise again the significant part which rules and policies play in fair decision-making.  Even judges, in their decision-making, operate in the context of structured rules.  It should no longer be necessary for a decision-maker to indicate at any length the considerations which support the application of policy.  Rules and standards are important, both as a means of giving effect to lawful policy which a government or an authority has determined and wishes to be implemented and as a means of ensuring that decisions,
because they have been taken by reference to rules or settled standards, are fair, consistent and not arbitrary. 

Policy does not constitute a binding rule, unless a statute so provides, as does s.17(1) of the 1991 Act. Absent a statutory provision requiring compliance with policy, a decision-maker may depart from policy and, in an appropriate case, should do so. It is impossible to define or delineate the circumstances in which departure from policy is justified. Much depends upon the nature and context of the decision to be made, the nature of the policy to which regard is to be had and the nature of the individual circumstances to which attention is directed. In Re Drake (No 2), Brennan J said at 645 that, because of the part which policies play in fair administrative decision-making, the Administrative Appeals Tribunal should apply a lawful policy "unless there are cogent reasons to the contrary" such as "injustice in a particular case".  In Re Evans and Secretary, Department of Primary Industry (1985) 8 ALD 627, Davies J and Mr R A Sinclair spoke of "special or unique circumstances". No term will in itself adequately express the point. The decision must be made having regard to the decision and its context, the nature and ramifications of the policy and the nature and consequences of the individual circumstances which are relied upon.

When, in Drake (No 2), Brennan J spoke of "injustice in a particular case", his Honour did not have it in mind that the matter should be governed entirely by the hardship to the individual.  At 645, his Honour said:-

"Injustice, in the context of ss 12 and 13 of the Migration Act, must mean a disproportion between the detriment suffered by those affected by the execution of a deportation order and the benefit which might reasonably be expected to result to the
community at large or to particular individuals in the community if the order were affirmed."

Necessarily, each matter must be judged by weighing up the particular circumstances of the case in the light of the part which the policy plays in the overall context of the decision to be made.  In Discretionary Powers, at 169, Galligan spoke of the optimum balance between "settled standards", whether they be stipulated in advance or developed incrementally, and "the particular case", and went on to mention how difficult it can be to find that optimum balance.

The issue has often arisen in relation to management plans for fisheries.  It was discussed at length in Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366. The Tribunal said at 376:-

"In contrast to the operations of ss 12 and 13 of the Migration Act 1958 (Cth), which required consideration of `the unique circumstances of each case', to use Justice Brennan's expression, the achievement of the end sought by the policy of the Australian Fisheries Council did require the taking of decisions pursuant to broad and relatively binding rules rather than the assessment of each particular case. The resolution of the Australian Fisheries Council sought to achieve a restructuring of the SBT industry in accordance with the principles which it laid down. That is not to say, however, that no room was left for the exercise of discretion or judgment should special or unique circumstances arise for consideration."

At 380, the Tribunal said:

"There being no special circumstances which affected the Astons, this is pre-eminently the type of matter in which the policy adopted by the primary decision-maker ought to be applied by this Tribunal.  The policy affected an industry.  It was a policy decided upon at the highest level, being resolved upon by the Australian Fisheries Council comprised of the six relevant Ministers of the States and the Federal Minister for Primary Industry and the Federal Minister for Science and Technology.  It was a policy which could only be developed in the political arena after consultation with industry.  The Tribunal, which is not accountable politically and which cannot proceed by obtaining industry consensus, must give such a policy great weight.

Moreover, the policy has been given effect and following its implementation the number of fishermen holding licences has been reduced from 143 to 57.  Justice to
others demands that Mr and Mrs Aston should be treated on a basis similar to that which has been applied to SBT fishermen generally unless there are special circumstances to be taken into account in their favour."

As was there pointed out, it is relevant that the management plans for fisheries have tended to be plans arrived at after considerable consultation and often with the approval of a body representing fishermen in the fishery. 

A similar approach to that taken in Re Aston was also adopted in Re Evans by the majority, Davies J and Mr R.A. Sinclair.  The dissenting member, Deputy President Jennings, considered that the circumstances of the applicant's case justified a decision departing from the management plan.  Deputy President Jennings laid emphasis upon the term "continuing commitment to the industry" which, although not part of the relevant plan, was a term commonly used in the industry in relation to the regulation of the fishing industry at that time.  At 648-9, the Deputy President said, inter alia:-

"(48)The scallop policy now under consideration was developed with a full appreciation of the need to balance its aim of conserving stocks and a desire to avoid discrimination between and injustice to those who could show or had shown a continuing commitment to the industry.  There was no equivalent of a `national quota'.  The size of scallop boats and therefore their catches varied considerably.  The policy itself required consideration of individual cases and all the relevant circumstances pertaining thereto.

...

(52)In my opinion the compromise solution which attempted to satisfy the legitimate but irreconcilable needs of Victorian and Tasmanian fishermen was bound to produce some unjust decisions if strictly applied.  The arbitrary method of determining the right of Tasmanians to endorse by reference first to a nine month period and later to an additional two year period necessarily enabled persons who had demonstrated no real commitment to the fishery to qualify.  It was sufficient to show one act of fishing.  Conversely persons who had such a commitment but who for legitimate reasons had failed to fish, even for one day, were excluded."

The reasoning of Deputy President Jennings is illustrative of reasoning which can lead a decision-maker to depart from policy.  In most of the fishing cases which have come before it, the Administrative Appeals Tribunal has applied the policy enunciated in the relevant management plan.  Examples where special circumstances justifying departure from policy were found are Re Musgrave and Secretary, Department of Primary Industry (1986) 11 ALD 218 and Re Robinson and Secretary, Department of Primary Industry (1986) 10 ALD 302. An example to the contrary is Re Sawyer and Secretary, Department of Primary Industry (1987) 12 ALD 523. These are only some of the many cases which have come before the Administrative Appeals Tribunal.

Deputy President McMahon was familiar with the principles to be applied.  Such issues arise in several of the jurisdictions of the Administrative Appeals Tribunal.  The Deputy President referred to Re Evans, Re Robinson and Re Sawyer and also to the judgment of Beazley J in Skoljarev v Secretary, Department of Primary Industries & Energy.  In the exercise of his discretion, the Deputy President considered that the policy enunciated in the management plan should be applied.

One challenge made to the Deputy President's reasons was that, on two occasions, he used the expression "a cogent reason for departing from policy" and on another occasion "no cogent reasons shown to support a departure from the application of policy".  It was submitted that the Deputy President was seeking to ascertain whether there was some particular factor which constituted a cogent reason for not applying the management plan rather than considering whether the circumstances as a whole justified a conclusion that the management plan was not appropriate to the circumstances of Mr Skoljarev's case.  As I read the Deputy President's reasons for decision, however, he gave consideration to the totality of Mr Skoljarev's circumstances but thought nevertheless that the policy enunciated in the management plan should be applied. 

The Deputy President twice used the singular "a cogent reason".  In Re Drake (No 2) Brennan J used the words "cogent reasons" to encompass the totality of the relevant circumstances to be taken into account and the balancing exercise which must be undertaken, and so did the majority of the Tribunal in Re Evans when using the expression "special or unique circumstances".  It would be wrong to criticise a busy Tribunal for a possible looseness of language.  The question is always whether the correct principles were applied.  In my opinion, the Deputy President approached the matter correctly.  That he did so is clear from his examination of all relevant matters and his preference for Brennan J's term "cogent reasons" rather than the term "special or unique circumstances", which he considered might limit the factors to be taken into consideration.  I may add that, in Re Drake (No 2) at 645, Brennan J himself used the words "a cogent reason".

Counsel for the applicant laid emphasis upon Mr Skoljarev's commitment to the industry and to the hardship which the management plans had caused to him.  These were undoubtedly factors which were relevant; but I am satisfied that Deputy President McMahon took them into account.  They were not conclusive factors.  Plans of management have, as a general rule, limited the fishing capacity and have had the
effect of excluding from the industry persons who have had a commitment to the industry and who have wished to continue fishing.  The 1985 Plan, it will be recalled by requiring that the applicants had fished in the Fishery between January 1980 and July 1981 and had continued to do so thereafter, necessarily excluded many persons who had fished before or after but not during the specified dates or who had not "continued to operate" during the ensuing period or had not done so sufficiently to obtain an appropriate catch.  All such matters were relevant. 

Hardship to the individual was only one factor to be taken into consideration. The main function of the 1991 Plan was not to assist consistent decision-making by enunciating principles against which individual cases could be judged. Its principal function was to give effect to the objectives stated in s.3 of the 1991 Act, including maximising economic efficiency in the Fishery, ensuring that through proper conservation and management measures the living resources of the Fishery were not endangered and achieving the optimum utilisation of the Fishery. Because of this and earlier plans, persons who have wished to fish have been forced out of the industry. Other persons have changed their positions in reliance upon the plans by buying or selling units of fishing capacity.

It is no doubt unfortunate that a plan of management was not determined under s.17 of the 1991 Act, which would have involved consultation, the publication of a draft plan and the consideration of representations. The importance of taking steps such as these with policy of this type is well explained both in the Administrative Law Treatise and in Galligan's Discretionary Powers.  I would encourage the Authority to exercise the function for which Parliament has provided.  Justice to persons in the industry demands that management plans should not be formulated without prior consultation and the exposure of a draft plan.  However, notwithstanding that the formal steps have not been taken, the subject management plan undoubtedly sought to achieve important objectives.  Individual justice must be considered in that light.

The Deputy President was not considering an application for a 1986 licence.  The applications were for the 1994 and 1995 years.  Mr Skoljarev had not lawfully fished in the Fishery since 1981.  In the meantime, there had been almost a decade during which management plans which excluded him from the Fishery had been enunciated and applied.  Counsel for Mr Skoljarev submitted that Mr Skoljarev did not comply with the 1991 Plan because he had been involved in administrative and legal challenges since his application was refused in 1985.  The history of the challenges was, of course, relevant and the Deputy President took it into account.  The problems arose, however, not from these challenges but because, after 1981, Mr Skoljarev did not continue to operate in Region A of the Eastern Sector, although he intended to resume fishing therein.  Therefore, he did not meet the requirements of the 1985 Plan. 

It was submitted by counsel for Mr Skoljarev that there was fallacious reasoning in the Deputy President's remark that, "It was this absence for some 3 or 4 years that led prior decision makers to the conclusion that he did not have the necessary commitment to the fishery ... coupled with the fact that there were no compelling reasons why his failure to comply should be overlooked."  As I read the statement, however, it was a mere recital of the substance of past decisions.  I have no reason to think that it was not correct.

In my opinion, it was open to the Deputy President to conclude that the policy contained in the 1991 Plan should be applied, notwithstanding the circumstances on which Mr Skoljarev relied.  The decision is consistent with other decisions of the Administrative Appeals Tribunal and no error in the reasons has been demonstrated.  I am satisfied that the Deputy President undertook the necessary step of balancing the demands of policy against the need for individual justice.

The appeal from the decision with respect to the 1994 year must be dismissed.  Although the reasoning on which the Deputy President proceeded in his dismissal of the application for the 1994 year was in error, the facts respecting that year were, as the Deputy President said, identical for practical purposes to those applying to the 1995 year.  Accordingly, it is clear that the Deputy President would have arrived at the same decision with respect to the 1994 year. 

In this circumstance, the appeal should be dismissed.  The applicant should pay the respondent's costs of the proceedings.

I certify that this and the 17 preceding pages are
a true copy of the reasons for judgment herein of
the Honourable Mr Justice Davies.

Associate:

Date:       12 December 1995

Counsel for the applicant:  A.W. Street.
  M.S.C. York  

Solicitor for the applicant:  Thomson Rich O'Connor

Counsel for the respondent:  P. Roberts  

Solicitor for the respondent:  Australian Government Solicitor

Date of hearing:  30 October 1995

Date of judgment:  12 December 1995