Smith v Minister for Fisheries

[2003] NSWADT 84

CITATION:	Smith v. Minister for Fisheries [2003] NSWADT 84
DIVISION:	General Division
PARTIES:	APPLICANT Peter Smith RESPONDENT Minister for Fisheries
FILE NUMBER:	023205
HEARING DATES:	17/01/2003
SUBMISSIONS CLOSED:	01/24/2003
DATE OF DECISION:	04/24/2003
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Charter boat fishing licence - grant of licence - Fisheries Management Act - charter boat fishing licence - grant of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Amendment (Miscellaneous Provisions) Regulation 2001 Fisheries Management (General) Regulation 1995 Fisheries Management (General) Regulation 2002 Fisheries Management Act 1994
CASES CITED:	Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150 Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 Murphyores Incorporated Ltd. v. The Commonwealth (1976) 136 CLR 1 Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 Surinakova v Minister For Immigration, Local Government And Ethnic Affairs (1991) 33 FCR 87 Jones v Dunkel (1959) 101 CLR 298 Citibank Limited v Federal Commissioner of Taxation (1988) 88 ATC 4714 Mohammed Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Hill J, 12 December 1989)
REPRESENTATION:	APPLICANT R Horsley, barrister RESPONDENT J Klarica, barrister
ORDERS:	The decision by the Minister for Fisheries to grant a non-transferable charter fishing boat licence to Mr. Peter Smith is set aside. The matter is remitted for the Minister’s reconsideration.

Background
1 These proceedings relate to a decision by the Minister for Fisheries (“the Minister”) to grant a non-transferable charter fishing boat licence to Mr. Peter Smith. Mr. Smith was advised of that decision by letter dated 28 August 2002 from the Director of Fisheries.

2 On 25 January 2001 Mr. Smith applied for issue of a transferable charter fishing boat licence for the authorised activities of near shore bottom fishing and sport fishing and deep-sea bottom fishing for the vessel 'Banks'.

3 By letter dated 29 March 2001 Mr. Smith was advised that he had not met all the prescribed criteria. By letter dated 11 April 2001 Mr. Smith was advised that his application was refused under clause 226H of the Fisheries Management (General) Regulation 1995 (“the Regulation”). The application was refused because Mr. Smith was not able to satisfactorily demonstrate that his vessel was:

“(i) actively engaged in NSW charter fishing activities on or before 22 October 1997;

(ii) engaged in those activities for more than 100 days during any two-year period between 22 October 1995 and for August 1999; and

(iii) operating in accordance with the requirements of the certificate of survey.”

4 Mr. Smith was encouraged to submit additional information to clarify those matters and provided with the opportunity to challenge the decision by applying for a review.

5 Mr. Smith applied for a review of the decision under cover of a letter dated 21 May 2001. He indicated that he had made a financial commitment to purchase the vessel for the purpose of conducting guided estuarine and marine charter fishing activities prior to 22 October 1997.

6 On 25 October 2001 a delegate of the Minister wrote to Mr. Smith and advised that a Charter Boat Review Panel ("the Review Panel") would be established to conduct a review of the matter pursuant to clause 226V of the Regulation. The Minister’s delegate sought further evidence or information in support of Mr. Smith’s application.

7 Mr. Smith provided submissions for consideration by the Review Panel and a hearing was conducted on 8 May 2002. The Review Panel prepared a report in the following terms:

“The review panel is satisfied that the applicant had, before 22 October 1997 clearly demonstrated his financial investment in a boat for use in connection with marine and estuarine charter fishing in New South Wales.

The Panel is satisfied that the combination of reasons of the magnitude of the project, the applicant's difficulty in obtaining finance due to an event not due to any fault or omission on his part and the construction delays brought about by the combination of NSW Waterways survey requirements and the distant locations of materials and fabrications are valid reasons why the applicant failed to satisfy the eligibility criteria in clause 226V(2)(c)(i) of the Fisheries Management (General) Regulation 1995. The Panel is satisfied that it is fair and reasonable in the circumstances to grant the person a licence.

The Panel recommends to the Minister that the applicant be issued a charter fishing boat licence.”

8 The Review Panel did not specify the type of licence that should be issued. However at the conclusion of the hearing, the Review Panel informed Mr. Smith that Ministerial Guidelines stipulated that only a non-transferable licence could be recommended where an applicant relied on an investment in a boat before 22 October 1997. The Review Panel indicated that stipulation in its Report. The Review Panel report is in a standard form and its design provides for the Review Panel to indicate its recommendations by placing crosses in relevant boxes. In its Report relating to Mr. Smith’s application the Review Panel placed a cross in a box under the term “non transferable” and this is referenced to the term “Ministers Guidelines”.

9 Subsequently, a Fisheries Management Officer prepared a briefing note and Recommendation to the Director, NSW Fisheries as the Minister's delegate (“the Ministerial briefing”). The Ministerial briefing is dated 17 May 2001 and insofar as is relevant to these proceedings provides as follows:

“The Charter Boat Review Panel has made recommendations for five review matters relating to those applicants who were originally refused to charter fishing boat licence by the Minister. …

The Charter Boat Review Panel has recommended issue of charter boat licence for each of these matters under clause 226V(2)(c), however the Panel have not specified the type of licence that should be issued. Each of the above applicants clearly demonstrated financial investment or commitment in a boat for use in connection with marine and estuarine charter fishing in New South Wales. The Minister's Guidelines require that a non-transferable licence be issued in such cases.

In all of the recommendations the Panel were satisfied that there were valid reasons why the applicant failed to satisfy the eligibility criteria and that it was fair and reasonable in the circumstances to grant the person a licence (226V(2)(c)(ii)).

OPTIONS

1. The Director approves the attached recommendations by the panel in accordance with the Guidelines.

2. Seek amendment to the Guidelines to issue of a transferable licence where valid reasons are shown and refer the matter back to the Panel for clarification on whether the licence should be transferable or non-transferable.

RECOMMENDATION

That Option 1 be approved”

10 A table of applicants and recommendations annexed to the Ministerial briefing states:
“Under clause 226V(2)(c) the Panel may recommend issue of a licence if they are satisfy the person had, before 22 October 1997, clearly demonstrated his or her financial investment or commitment in a boat for use in connection with marine and estuarine charter fishing in New South Wales. In accordance with guidelines approved by the Minister the panel may only recommend the non-transferable licence under this clause.”
11 In accordance with the recommendations of the Review Panel, the Director, NSW Fisheries as the Minister's delegate determined that Mr. Smith should be issued with a charter fishing boat licence. In accordance with the Ministerial briefing's recommendation, the Director determined that Mr. Smith should be issued with a non-transferable licence. It is this decision that is under review.

Applicable Legislation
12 Section 63 of the Administrative Decisions Tribunal Act 1997 provides for the approach to be taken by this Tribunal in determining an application for a review of a reviewable decision. Section 63 provides:

“63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”
13 Part 4A of the Fisheries Management Act 1994 (“the Act”) provides for the regulation of charter fishing. The provisions most relevant to these proceedings are as follows:
“127A Meaning of charter fishing boat
For the purposes of this Part, a boat is a charter fishing boat if:
(a) the boat is used for recreational fishing activities under an arrangement made with or on behalf of the persons using the boat, and
(b) a payment or other consideration is required to be made or given by or on behalf of all or any of those persons for the right to fish from the boat, and
(c) the boat is used for recreational fishing activities in any waters (whether or not within the limits of the State).
127B Certain charter fishing boats to be licensed
(1) The regulations may declare that all or any specified class of charter fishing boats are required to be licensed under this Part.
(2) The master of a boat must not use the boat as a charter fishing boat if:
(a) it is required by such a regulation to be licensed, and
(b) the boat is not licensed under this Part.
Maximum penalty: 100 penalty units.
(3) The owner of a boat must not permit the boat to be used as a charter fishing boat if:
(a) it is required by such a regulation to be licensed, and
(b) the boat is not licensed under this Part.
Maximum penalty: 100 penalty units.
(4) The regulations may provide that a boat licensed under a law of the Commonwealth or of another State or a Territory as a charter fishing boat is taken to be licensed under this Part.
127C Provisions relating to licensing of charter fishing boats
(1) The owner of a boat (or a person authorised by the owner) may apply to the Minister for the issue of a licence for the boat under this Part.
(2) An application is to be in the form approved by the Minister and is to be accompanied by such fee (if any) as is prescribed by the regulations.
(3) The Minister is required to issue a charter fishing boat licence if an application for the licence is duly made, unless the Minister is authorised by the regulations to refuse the application. Without limiting this subsection, the Minister may refuse the application because of any applicable restriction on charter fishing boats under a management plan prescribed by the regulations for the charter fishing industry.
(4) A charter fishing boat licence:
(a) is subject to such conditions as are prescribed by the regulations or specified in the licence, and
(b) remains in force for the period of 1 year or such other period as is specified in the licence, and
(c) may be renewed from time to time in accordance with the regulations, and
(d) may be cancelled or suspended by the Minister in the circumstances authorised by the regulations.
(5) The regulations may prescribe different classes of charter fishing boat licences.
(6) The Minister may, at any time, by notice in writing to the holder of a charter fishing boat licence, revoke or vary the conditions of the licence or add new conditions. This subsection does not apply to conditions prescribed by the regulations.
(7) The holder of a charter fishing boat licence who contravenes any condition of the licence is guilty of an offence.
Maximum penalty: 100 penalty units.
(8) The regulations may make provision for or with respect to charter fishing boat licences (including for or with respect to permitting, prohibiting or restricting the use of a boat as both a charter fishing boat and a commercial fishing boat licensed under Division 2 of Part 4).
127F Appeal rights
Division 6 of Part 4 applies to a charter fishing boat licence as if the licence were a relevant authority for the purposes of that Division.
14 Division 6 of Part 4 of the Act provides:
“Division 6 - Reviews by Administrative Decisions Tribunal
125 Definition of relevant authority
In this Division, relevant authority means:
(a) a commercial fishing licence, or
(b) an endorsement on a commercial fishing licence, or
(c) a fishing boat licence, or
(d) the registration of a member of the crew of a boat, or
(e) a fish receiver’s registration.
126 Applications to Administrative Decisions Tribunal for reviews of certain decisions
(1) A person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned:
(a) the refusal to issue a relevant authority to the person or to renew the person’s relevant authority,
(b) the imposition of conditions on the person’s relevant authority (otherwise than by regulation),
(c) the suspension or cancellation of the person’s relevant authority.
(2) For the purposes of this section, an application for the issue or renewal of a relevant authority is taken to have been refused if the authority is not issued or renewed within 60 days after the application was duly made.”
15 Part 9A of the Regulation provides for the regulation and management of guided recreational charter fishing in the marine and estuarine charter fishing sector. Division 2 of Part 9A provides for licensing of charter fishing boats for the purposes of section 127B of the Act. The relevant provisions are as follows:
“226E What boats must be licensed?
(1) For the purposes of section 127B of the Act, it is declared that a charter fishing boat is required to be licensed under Part 4A of the Act if it is used for any guided recreational charter fishing that involves:
…
(b) near shore bottom fishing and sport fishing, or
…
(d) deep sea bottom fishing.”
“226G Classes of licence
There are two classes of licence, as follows:
(a) transferable,
(b) non-transferable.
226H Eligibility criteria - transferable licence
(1) A person is eligible for a transferable licence in respect of a boat owned or otherwise under the control of the person if the person satisfies the Minister that:
(a) the person is entitled to claim a history of operations in respect of a boat that:
(i) was actively used for guided recreational charter fishing activities in the marine and estuarine charter fishing sector before 22 October 1997, and
(ii) was actively used for those activities for at least 100 days during any period of 24 consecutive months between 22 October 1995 and 4 August 1999, and
(iii) was used in accordance with the requirements of the certificate of survey for the boat at all times during the period in which it was used for those activities, and
(b) the certificate of survey for the boat referred to in paragraph (a) was, at all times during the period in which it was used for those activities, consistent with the type of licence applied for by the person.
Note. 22 October 1997 is the date on which the Minister announced a ministerial warning against further investment in the New South Wales recreational charter fishing boat industry, because of moves to cap the number of operators in the industry at the level then present (see second reading speech for the Fisheries Management Amendment Bill 1997, which inserted Part 4A in the Act, Hansard of 22 October 1997, page 1208).
(2) If any one of the eligibility criteria is not satisfied, the person is not eligible for a transferable licence.
(3) A person can be eligible only for the same number of licences as boats in respect of which the person is entitled to claim a history of operations. That is, if the person is entitled to claim a history of operations in respect of one boat, the person can be eligible for a licence in respect of one boat only.”
226I Eligibility criteria – non-transferable licence
(1) A person is eligible for a non-transferable licence in respect of a boat owned or otherwise under the control of the person if the person satisfies the Minister that:
(a) the person is entitled to claim a history of operations in respect of a boat that:
(i) was actively used for guided recreational charter fishing activities in the marine and estuarine charter fishing sector before 22 October 1997, and
(ii) was actively used for those activities for at least 50 days during any period of 24 consecutive months between 22 October 1995 and 4 August 1999, and
(iii) was used in accordance with the requirements of the certificate of survey for the boat at all times during the period in which it was used for those activities, and
(b) the certificate of survey for the boat referred to in paragraph (a) was, at all times during the period in which it was used for those activities, consistent with the type of licence applied for by the applicant.
(2) If any one of the eligibility criteria is not satisfied, the applicant is not eligible for a non-transferable licence.
(3) A person can be eligible only for the same number of licences as boats in respect of which the person is entitled to claim a history of operations. That is, if the person is entitled to claim a history of operations in respect of one boat only, the person can be eligible for a licence in respect of one boat only.
226J Entitlement to claim a history of operations
(1) For the purposes of this Part, a person is entitled to claim a history of operations in respect of a boat if:
(a) the boat was used by the person for guided recreational charter fishing activities in the marine and estuarine charter fishing sector during the periods relevant for the purposes of the eligibility criteria for a licence, and the person has not transferred his or her entitlement to that history of operations pursuant to a transfer made:
(i) before the commencement date, in accordance with the policies of NSW Fisheries with respect to such transfers, or
(ii) on or after the commencement date, in accordance with clause 226L, or
(b) the person has acquired a history of operations of a kind referred to in paragraph (a) in respect of a boat from another person pursuant to a transfer made:
(i) before the commencement date, in accordance with the policies of NSW Fisheries with respect to such transfers, or
(ii) on or after the commencement date, in accordance with clause 226L.
(2) Only one person is entitled to claim a history of operations with respect to one boat.
(3) If more than one person claims a history of operations of a kind referred to in subclause (1) (a) in respect of a boat, the person who is entitled to make that claim is the person who, in the opinion of the Minister, was principally responsible for the use of the boat for guided recreational charter fishing activities in the marine and estuarine sector during the periods relevant for the purpose of determining eligibility for a licence.
226K Eligibility - time limit on applications
(1) Despite clauses 226H and 226I, eligibility for a licence in respect of a history of operations lapses if no licence has been applied for in respect of that history of operations by 30 April 2001.

(2) This clause does not apply in any case where the Minister is satisfied that there were good reasons why the licence was not applied for by 30 April 2001.
226 Issue of licence
(1) The Minister is authorised to refuse an application for a licence for a boat if:
(a) the Minister is not satisfied that the applicant is eligible to be issued with the licence, or the class of licence applied for, in respect of the boat, or …”
16 Division 3 of Part 9A of the Regulation provides for the review of decisions relating to the issue of a licence by a Review Panel established by the Minister. Prior to 30 June 2001 a person who was refused a licence could request a review of that decision pursuant to clause 226S of the Regulation. This was the approach that Mr. Smith adopted. If a review request is duly made, clause 226U of the Regulation required that the Minister establish a panel to conduct the review. The Minister may reject a review request without establishing a panel to conduct the review if the matter has already been the subject of a review by a panel under this Division, or the Minister is of the opinion that the review request is frivolous or vexatious. The review is governed by clauses 226V and 226W of the Regulation which provide:
226V Conduct of review
(1) The panel is to review the decision that is the subject of the review request and provide the Minister with a written report on the matter within the time specified by the Minister or any extension of that time granted by the Minister.
(2) A panel that conducts a review of a decision of the Minister to refuse to issue a licence to a person may recommend that the person be issued with a licence, but only if the panel is satisfied that:
(a) the person is eligible for the licence, or
(b) the person:
(i) would have satisfied the eligibility criteria but for circumstances beyond the control of the person, (for example illness or delays in the repair of a boat), and
(ii) was actively engaged in guided recreational charter fishing activities in the marine and estuarine charter fishing sector before 22 October 1997, or
(c) the person had, before 22 October 1997, clearly demonstrated his or her financial investment or commitment in a boat for use in connection with marine and estuarine charter fishing in New South Wales and:
(i) the boat has been actively used for guided recreational charter fishing activities in the marine and estuarine charter fishing sector for at least 50 days during any period of 24 consecutive months between 22 October 1995 and 4 August 1999, or
(ii) there are valid reasons why the person failed to satisfy the eligibility criteria in paragraph (i) and it is fair and reasonable in the circumstances to grant the person a licence.
(2A) Regardless of the nature of licence originally applied for, a panel may recommend the issue of either a transferable or a non-transferable licence.
…”
226W Procedure to be followed by panel
(1) A decision of the panel is a decision supported by the majority of its members.
(2) The procedure of the panel is to be determined by the panel, subject to this clause and to any guidelines approved by the Minister.”
17 Clause 226V(2A), which was inserted into the Regulation by the Fisheries Management (General) Amendment (Miscellaneous Provisions)Regulation 2001, commenced on 23 March 2001. A comparable provision is now included in clause 315(3) of the Fisheries Management (General) Regulation 2002 (“the 2002 Regulation”) which came into force on 1 September 2002. The provisions of clause226W of the Regulation are repeated in clause 316 of the 2002 Regulation.

18 Clause 226X of the Regulation provides for the action that may be taken by the Minister following the review. Clause 226X provides:

226X Action by Minister following review
(1) On receipt of a report by a panel, the Minister may:
(a) in the case of a review of a decision to refuse to issue a licence, confirm the refusal or set that decision aside and substitute a new decision in accordance with the recommendations of the panel, or
(b) in the case of a review of a decision to issue a licence, confirm the issue of the licence or cancel the licence in accordance with the recommendations of the panel, or
(c) in any case, refer the matter back to the panel (together with comments or recommendations) for further consideration.
(2) The Minister may, following a review, determine that a person is eligible for a licence even though the person does not satisfy the eligibility criteria for the licence only if the panel recommends that the person be issued with a licence. If the Minister makes such a determination, the person is taken, for the purposes of the provisions of this Part that deal with eligibility for a licence, to be eligible for the licence. …”
The Minister's Guidelines
19 As noted above, clause 226W of the Regulation provides that the Review Panel is to determine its own procedure subject to that clause and subject to any guidelines approved by the Minister. As also noted above the Review Panel report was referenced to the term “Minister’s Guidelines”. It is common ground that this is a reference to the Minister's Guidelines (“the Guidelines”), approved 29 January 2002, and titled “Charter Boat Review Panel Guidelines”. A copy of those Guidelines is in evidence.

20 The introduction to the Guidelines states:

"The following guidelines are to be taken into account by the charter boat review panel during the charter fishing boat licence review process.

The purpose of establishing these guidelines is to ensure consistency in the decision-making process by all members of the panel and as a reference to the setting of any precedents by the panel during the review process."

21 The guidelines further state:
“Clause 226V(2)(c) provides for situations where the applicant is unable to demonstrate active participation in charter fishing activities prior to 22 October 1997. Under this clause, the panel may recommend issue of a licence where the applicant has made an investment or commitment in a boat before 22 October 1997. In addition, the clause allows the panel to recommend a licence with the applicant also fails to satisfy other eligibility criteria. For example, the applicant is unable to demonstrate 50 or 100 days charter fishing activity referred to in clause is 226H and 226I due to illness or delays in building/repair of a replacement boat.

The panel cannot recommend a transferable endorsement under this clause.”

Mr. Smith's Case
22 Mr. Horsley, on behalf of Mr. Smith, argued that the Minister's decision was reached following an inflexible application of policy without considering the merits of Mr Smith's Case. This was so because the Review Panel considered that it was bound by declaration in the Guidelines that indicated that it could not recommend a transferable licence under clause 226V(2)(c) of the Regulation.

23 Mr. Horsley argued that clause 226V(2A) of the Regulation places the Review Panel's discretion beyond doubt. As noted above, clause 226V(2A) provides that “Regardless of the nature of licence originally applied for, a panel may recommend the issue of either a transferable or a non-transferable licence.”

24 The relationship between the procedure of the Review Panel and the guidelines approved by the Minister is governed by clause 226W of the Regulation. Mr. Horsley submitted that the status of the Guidelines is crucial to this matter. He argued that the Guidelines address procedure as provided for by clause 226W but they are not limited to matters of procedure. They purport to deal with matters of substance and this is not authorised by clause 226W.

25 The Ministerial briefing refers to the Guidelines and observes that “The Minister's Guidelines require that a non-transferable licence be issued in such cases” and “In accordance with guidelines approved by the Ministers the panel may only recommend the non-transferable licence ...”. Mr. Horsley submitted that this is inflexible wording and the policy has been applied inflexibly.

26 The options proposed in the Ministerial briefing were to either approve the Review Panel recommendations in accordance with the Guidelines or to seek amendment to the Guidelines to permit the issue of a transferable licence. Neither of these options suggests that there was any scope for flexibility in the decision making process.

27 Similarly, paragraph I of the statement of reasons provided by the Minister states:

“In accordance with the relevant guidelines approved by the Minister, the Minister determined that the applicant should be issued with a non-transferable charter fishing boat licence.”
28 Similar language is used in other paragraphs of those reasons. At paragraph numbered (x) on page 14 of the reasons it is stated:
“the Minister imposed Guidelines to remove the Charter Boat Review Panels discretion to issue a transferable licence to persons relying on clause 226V(2)(c) of the Regulation.”
29 Mr. Horsley argued that clause 226W authorises Guidelines for the procedure to be followed by the Review Panel. To the extent that the Guidelines go to matters of substance they are ultra vires and therefore of no effect. He submitted that it would be extraordinary if the Minister had the power to remove a discretion that has been given under the Regulation. Clear language would be expected if that were the case.

30 In giving a guideline or direction to the Review Panel that it not recommend a transferable licence in certain circumstances, in direct contradiction of clause 226v(2A), the Minister purported to remove from the Review Panel a part of the task that the Regulation required the Review Panel to perform. He did not give to the Review Panel the whole of the task that the Regulation required him to give to the Review Panel. As a consequence the Review Panel has not completed a review under clause 226V. The Minister could not determine the matter until the Review Panel had completed that review and therefore the Minister's purported determination was ultra vires.

31 The Minister, or his delegate, should have considered the issue of a licence to Mr. Smith, including the issue of whether it should be transferable or non-transferable, with the benefit of a report from a Review Panel that has itself actively considered whether the licence should be transferable or non-transferable.

32 Mr. Horsley argued that the Review Panel had not given any consideration to the question of whether Mr. Smith' s licence should be transferable or non-transferable because the guidelines denied any such consideration. Consequently, the Minister gave no consideration at to whether Mr Smith's licence should be transferable or non-transferable. In the circumstances, the Minister should have referred the matter back to the Review Panel, under clause 226X(1)(c) of the Regulation, to consider whether the licence should be transferable or non-transferable.

33 In support of his submission Mr. Horsley referred to the decision of Spender J in Perder Investments Pty Ltd v Lightowler (1990) 25 FCR 150 at page 155 where his honour stated:

“The principle that a decision-maker cannot abrogate a discretion by the application of a universal policy with no consideration of the merits of the matter is clear from the authorities. In Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 640, Brennan J. was concerned with the inter-relationship of ministerial policy and ss. 12 and 13 of the Migration Act 1958 which deal with the deportation of an immigrant. His Honour said at 640-641:
"The Minister must decide each of the cases under ss. 12 and 13 on its merits. His discretion cannot be so truncated by a policy as to preclude consideration of the merits of specified classes of cases. A fetter of that kind would be objectionable, even though it were adopted by the Minister on his own initiative. A Minister's policy, formed for the purposes of ss. 12 and 13 of the Migration Act, must leave him free to consider the unique circumstances of each case, and no part of a lawful policy can determine in advance the decision which the Minister will make in the circumstances of a given case. That is not to deny the lawfulness of adopting an appropriate policy which guides but does not control the making of decisions, a policy which is informative of the standards and values which the Minister usually applies. There is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power."
Brennan J. had introduced these comments with a statement of general principle at 640:

"Of course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute (see Murphyores Incorporated Ltd. v. The Commonwealth (1976) 136 CLR 1; Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 at 589, and the cases there cited). Also, it would be inconsistent with ss. 12 and 13 of the Migration Act if the Minister's policy sought to preclude consideration of relevant arguments running counter to an adopted policy which might be reasonably advanced in particular cases. "

34 Mr. Horsley submitted that it is clear from the evidence that decision-maker abrogated his discretion by the application of a universal policy with no consideration of the merits of the matter. Consequently the decision must be invalid.

35 Mr. Horsley also referred to the decision in Surinakova v Minister For Immigration, Local Government And Ethnic Affairs (1991) 33 FCR 87 at pages 92-93 where Hill J stated:

“Before turning to these submissions, it is desirable to note first a submission advanced by counsel for the respondent, that the Departmental report which I have quoted, should be treated as virtually irrelevant. It was said, that even if errors of law could be shown in that report, the person who wrote the report was not the decision-maker. Rather, it was pointed out, that report was considered by the Immigration Panel which, in turn, made a recommendation to the Minister, whose delegate, in turn, made a decision and it should not be inferred that any mistakes made by the writer of that report infected the ultimate decision.

There are two answers to this submission. The first is, as the letter to the applicant from the Department of Immigration communicating the adverse decision to her points out, the relevant reasons for the decision were contained in the papers enclosed with that letter. The only reasons that are actually shown in any enclosed papers, are those that are set out in the handwritten document, being the Departmental report. In other words, the writer of the letter, who can be presumed to be acting with the authority of the delegate who made the decision, specifically adopted the reasons in the Departmental report as the reasons of the delegate.

Secondly, even if the letter of 14 May 1991 should not be taken as an adoption by the delegate of the reasons contained in the Departmental report, that Departmental report constitutes a recommendation that was made to the Immigration Review Panel. That Panel considered the Departmental report and the application and determined to maintain the original Departmental decision. It so recommended to the Minister, whose delegate can be assumed to have considered the Departmental report, which in fact was attached to the recommendation of the Immigration Review Panel. In these circumstances and in the absence of any evidence to the contrary from the delegate, it can be inferred that the Immigration Review Panel adopted the recommendation of the Departmental officer contained in the Departmental report and that in turn, the delegate of the Minister did the same. Indeed, the failure of the delegate to give any evidence as to the reasons for his decision enables me more confidently to draw that inference; cf Jones v Dunkel (1959) 101 CLR 298; Citibank Limited v Federal Commissioner of Taxation (1988) 88 ATC 4714 (affirmed on this point at (1989) 20 FCR 403) and Mohammed Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Hill J, 12 December 1989).

Accordingly, I am of the view that any error of law which affects the recommendation that ultimately went to the delegate can be taken as equally infecting the delegate's decision itself.”

36 Mr. Horsley submitted that the circumstances of this matter are comparable to those of Surinakova and that as the Ministerial briefing was influenced by the Guidelines, the recommendation that ultimately went to the Minister’s delegate can be taken as equally infecting the delegate's decision itself. He seeks a finding that consequently the decision under review was not the correct and preferable decision because the decision was taken without proper consideration of the merits of the matter.

The Minister's Case
37 Mr. Klarica argued that it is beyond doubt that the Minister is enabled to make guidelines for procedure by clause 226W of the Regulation. He further argued that the Tribunal does not have the power to declare that the Guidelines are invalid. The Tribunal has limited powers as outlined in section 63 of the Administrative Decisions Tribunal Act 1997. It is to determine whether the decision taken is the correct and preferable decision in the circumstances.

38 Nevertheless, Mr. Klarica submitted that the Guidelines address maters of procedure not matters of substance. He argued that the Guidelines do not remove the matters to be considered. They merely require that attention be placed on an applicant’s eligibility for a licence. In contrast, it is apparent from clause 226X of the Regulation that the Minister does not have to accept the Review Panel’s recommendation.

39 He conceded that if the Guidelines did go to matters of substance they should not be taken into account. That was not the case here. The Review Panel took account of the material that Mr. Smith provided. That is, factors other than the guidelines were taken into account. Once the Review Panel made its decision, the Minister then made a decision as to the type of licence that should be issued.

40 Mr. Klarica submitted that the decision under review is that of the Minister. There are no Guidelines that prohibit or limit the Minister from acting in accordance with the legislation. There is therefore no unlawful decision and therefore the matter should not be remitted for reconsideration.

Findings
41 I agree that the role of the Tribunal is to determine what is the correct and preferable decision in the circumstances. In doing so it is essential that all applicable legislation and policy is taken into account. This inevitably requires consideration of the Guidelines.

42 Clause 226W of the Regulation authorises the Minister to make guidelines for the procedure to be followed by the Review Panel. The procedure of the Review Panel is to be determined by the Review Panel, subject to those guidelines. It follows in my view that to the extent that the Guidelines relate to the procedure to be followed by the Review Panel they are valid.

43 I am satisfied that the Guidelines are not limited to matters of the procedure to be followed by the Review Panel but they purport to address issue of substance. In doing so, the Guidelines directly contradict the provisions of clause 226V(2A) of the Regulation.

44 It is apparent from the design of the standard form for the Review Panel’s report that the Review Panel was intended to consider the Guidelines. It is equally apparent that the Review Panel considered that the Guidelines provided for a Non-Transferable Charter Fishing Boat licence and that the Review Panel report did not make any specification with respect to a Transferable Charter Fishing Boat licence.

45 There is evidence that at the conclusion of the hearing, the Review Panel informed Mr. Smith that the Ministerial Guidelines stipulated that only a non-transferable licence could be recommended where an applicant relied on an investment in a boat before 22 October 1997. This evidence is not contradicted.

46 On the evidence before me I find as a fact that the Review Panel did not give any consideration as to whether Mr. Smith should be granted a transferable licence.

47 The action that is open to the Minister following a review is set out in clause 226X of the Regulation. The Minister is limited to either act in the specified manner or refer the matter back to the Review Panel for further consideration. In the circumstances the Minister’s delegate chose not to refer the matter back to the Review Panel.

48 It is the decision of the Minister’s delegate and not the Review Panel’s decision, which is under review. Nevertheless, I am persuaded by Mr. Horsley’s argument that the Minister’s delegate should make the decision with the benefit of a report from a Review Panel which has itself actively considered whether the licence should be transferable or non-transferable.

49 As noted above, the Review Panel’s report in relation to Mr. Smith was the subject of the Ministerial briefing. The options provided by the author of the Ministerial briefing indicate the view that the Guidelines would need to be amended if a transferable licence were to be issued. The author of the Ministerial briefing was clearly of the view that the Guidelines required that a non-transferable licence be issued where the Review Panel has recommended issue of licence under clause 226V(2)(c).

50 In these circumstances it can be inferred that both the Review Panel and the author of the Ministerial briefing mistakenly held the view that the Guidelines were binding. It can also be inferred that they each considered that the Guidelines required that a non-transferable licence be issued where the Review Panel has recommended issue of licence under clause 226V(2)(c).

51 The Minister’s delegate accepted the recommendation provided by the author of the Ministerial briefing. In the circumstances it is reasonable to infer that the Minister’s delegate was influenced by the advice provided in the Ministerial briefing. There is no evidence before me to suggest otherwise. It is probable that in turn, the Minister’s delegate adopted the mistakenly held view of the effect of the Guidelines.

52 I note the views expressed by Hill J in Surinakova v Minister For Immigration, Local Government And Ethnic Affairs that “any error of law which affects the recommendation that ultimately went to the delegate can be taken as equally infecting the delegate's decision itself”. In the circumstances of this matter, the infection lead to the Minister’s delegate taking a decision in regard to Mr. Smith’s licence without giving consideration to the full circumstances of the matter.

53 I agree with Mr. Klarica’s submission that there are no Guidelines that prohibits or limits the Minister or his delegate from acting in accordance with the legislation. I also agree that the Minister is not bound to follow the Review Panel’s recommendation. However, the discretion that rests with the Minister does not validate a decision based on erroneous or incomplete information. In the circumstances, the decision was reached following an incomplete review by the Review Panel brought about by an inflexible application of the policy set out in the Guidelines. The Review Panel’s report was issued without considering the merits of Mr Smith's case. Similarly, the Minister’s delegate made the decision under review without considering the merits of Mr Smith's case.

54 In my view, the appropriate order is to set aside the decision and remit the matter for reconsideration by the administrator. This reconsideration should be carried out in light of the provisions of Clause 226V(2A) of the Regulation so that adequate consideration is given to the merits of Mr Smith's case and whether in the circumstances Mr Smith should be granted a transferable or non-transferable licence.

Orders

The decision by the Minister for Fisheries to grant a non-transferable charter fishing boat licence to Mr. Peter Smith is set aside. The matter is remitted for the Minister’s reconsideration.