Smythe and Australian Fisheries Management Authority (AFMA)
[2001] AATA 677
•27 July 2001
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2001] AATA 677
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2001/48
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID ALAN SMYTHE Applicant
And
AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY (AFMA)
Respondent
DECISION
Tribunal Associate Professor B W Davis A.M. (Part-time Member) Date27 July 2001
PlaceHobart
Decision The decision under review is affirmed. [Sgd B W Davis]
Part-Time Member
CATCHWORDS
Primary Industry – fisheries – school and gummy shark – license – individual transferable quota (ITQ) – exceptional circumstances – sustainability – economic efficiency – precautionary principle – natural justice.
Legislation
Fisheries Management Act 1991 – ss.3, 28, 32, 165
Fisheries Administration Act 1992
Fisheries Legislation Amendment Act 1997
Administrative Decisions (Judicial Review) Act 1977
National Environment Protection Act 1994 – Schedule 1, Clause 3.5.1
Environment Protection and Biodiversity Conservation Act 1999.
Authorities
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Bannister Quest v Australian Fisheries Management Authority (1997) 77 FCR 503
Dixon v Australian Fisheries Management Authority and Executive Director of Fisheries W.A and Northern Territory of Australia (2000) AATA 442 (5 June 2000)
Allan and Development Allowance Authority (1999) FCA 426 (14 April 1999).
REASONS FOR DECISION
27 July 2001 Associate Professor B W Davis A.M. (Part-time Member) The Application
1. The applicant, David Alan Smythe, sought review of a decision made by a delegate of the respondent, the Australian Fisheries Management Authority (AFMA) pursuant to s.165 of the Fisheries Management Act 1991 (“the Act”) to grant Fishing Permit 26358, conditioned to have no quota for the catching of gummy or school sharks from 10 January 2001 to 31 December 2001. The initial decision was made on 10 January 2001, but subsequently reviewed and reaffirmed by another delegate of the respondent on 15 March 2001. The application to the Tribunal was on the basis of claimed “exceptional circumstances” and threatened livelihood.
Background
2. The applicant has been a professional fisherman in Tasmania since the mid 1960’s claiming to be primarily engaged in shark fishing, but with some crayfishing, and in the years 1989 to 1991 inclusive the applicant caught approximately 14080 kg of shark.
3. At this time the relevant Tasmanian Fishing Boat License (TFBL) was held in the name of the applicant’s partner, Marian Smith. In 1991 she disposed of that license in the content of a marital dispute and according to the applicant, against his wishes.
4. The applicant subsequently fished for shark on a leased crayfishing license (permitted at that time), but fell ill in 1994 and was forced to sell his vessel. The extent of shark catch at this time is not recorded.
5. In 1995 the applicant applied for and was granted a Tasmanian Shark Hook License (TSHL) for 1000 hooks and in November 1995 he acquired the vessel “Doris A”, however he had not obtained a new TFBL and was therefore legally precluded from using the TSHL. Despite efforts made via brokers and advertisements he was unable to find a suitable vessel with TFBL until 1998 and claims this difficulty had not been foreseen.
6. In effect the applicant was unable to fish for shark from 1995 until early 1999. During this time he was leasing a crayfishing license with some by-catch of shark, the extent of which is unknown to the applicant, as such history is recorded to the license holder. In 1998 the applicant finally obtained a TFBL and the vessel “Acacia” and commenced fishing exclusively for shark. In 1999 and 2000 he caught 7993 kg of shark in total.
7. By 1992, following State-Commonwealth negotiations and agreement, permits for fishing in the Southern Shark Fishery had come within jurisdiction of Section 32 of the Fisheries Management Act 1991 (C’th). In or about August 1999 the Allocation Advisory Panel (AAP) published its recommendations as to the criteria for fixing Individual Transferable Quotas (ITQ’s) to be allocated to applying shark fishermen. The policy provides that an ITQ will be determined by reference to any applicant’s verified catch history for the years 1994 – 1997 inclusive, but using the best three of four years, so as to allow for applicants individual circumstances. The policy also contemplates that “persons who believe that their catch history has been affected by exceptional circumstances will have the opportunity to appeal”.
Facts and Contentions
8. The applicant contends that his livelihood has been threatened by failure to receive a catch quota for school or gummy shark and that reasons exist whereby exceptional circumstances should be recognised and a quota allocated.
9. He cites the following reasons:
(a)he has a lengthy history of shark fishing and this is his principal and preferred method of fishing when he is able to do so;
(b)he had a substantial catch history of shark from 1989 to 1991, which was by relied upon by the state authorities in granting a TSHL;
(c)the applicant did not choose to dispose of his license in 1992;
(d)the applicant engaged in shark fishing from 1992 to 1994, albeit on a leased crayfishing license;
(e)the applicant obtained a TSHL in 1995, with the intention of utilising it for an indefinite period, but certainly to the end of 1997, but was unable to do so because of the unexpected inability to obtain a TFBL until 1998;
(f)during the relevant years of 1994 – 1997 the applicant did catch some shark albeit as a “by-catch”;
(g)the applicant had a substantial catch history of shark in 1999 and 2000;
(h)the applicant will suffer financial hardship if not allocated an ATQ;
(i)the applicant is aware of other instances where the respondent has granted ITQ’s on the basis of exceptional circumstances.
10. The respondent’s notice of facts and contentions makes the following points:
(a) the applicant has no catch history of shark in the years 1994 –1997 inclusive;
(b)the applicant was ill in late 1994 and early 1995, but this illness did not impact on his ability to fish because he did not have any entitlement to fish in this period;
(c)the applicant does not have standing to bring this application as he is not the current holder of Fishing Permit 26358, having sold it on 7 May 2001;
(d)the applicant has not demonstrated any special circumstance which would justify a departure from extant policy.
Evidence
11. At the Tribunal hearing on 6 July 2001, the applicant was represented by Mr A Buckley and the respondent by Mr K Read.
12. Mr Buckley indicated that the applicant had another quota application pending, but the issue of “standing” having been raised it was necessary to consider this at the outset. Counsel for both parties were agreed that it would be appropriate to deal with the issue under review (i.e. “exceptional circumstances”) first and only if this succeeded would the issue of Mr Smythe’s standing in respect of a quota or vessel need to be addressed in detail. The Tribunal accepted this procedure, but gave leave to both parties to address “standing” further if they considered it essential.
13. Mr David Alan Smythe was then sworn and gave evidence in relation to his witness statement, outlining his case history and difficult financial situation. He claimed to be essentially a shark fisherman, sometimes forced by events to engage in crayfishing and recently forced to sell his licenses because of creditors. He claimed to have an arrangement with a Mr Cooper that the latter would lease him a shark license if he was allocated a quota. He had another application before AFMA for a B license, but this was in abeyance pending the outcome of the Tribunal case. He stated that his partner (Marian Smith) was unable to give evidence having recently undergone a stroke.
14. Counsel for the respondent then cross-examined the applicant about the sequence of vessels and licenses involved between 1992 and 1998, noting that the licenses initially allocated in 1992 and 1995 were in the name of Marian Smith, because fisheries charges (subsequently resolved) were pending against the applicant at that time. The shark license issued in 1998 was in the applicant’s name.
15. The witness was then stood down and Mr Read commenced the case for the respondent, indicating this would focus on AFMA’s objectives and policies, with Mr Geoffrey Robert Richardson, Senior Manager of Southern Fisheries within AFMA giving evidence.
16. Mr Richardson was then sworn and gave evidence about the reason and mode of introduction of ITQ’s in the shark fishery. It was identified in 1996 that biomass had fallen to between 15% and 35% of earlier figures and quotas were urgently needed. Ample and early warning of this intention was given and an Allocation Advisory Panel (AAP) recommended criteria and procedures for ITQ’s, subsequently adopted by AFMA in August 1999. Fisherman had been informed that licenses would be granted on the basis of verified catch history and selection of the years 1994 – 1997 was not arbitrary, but permitted applicants to nominate their best three years catch out of four years. It was also indicated exceptional circumstances would be considered, but the AAP had not clarified how this would be assessed, apart from permitting appeal.
17. Mr Richardson noted that the primary entitlement to fish was a class A permit, however for those who did not hold this, a class B permit had been created, primarily for the purposes of levy collection. Class B permits were for a limited period and number of hooks, but would not in themselves be sufficient to ensure the economic viability of fishermen. They were therefore unlikely to resolve Mr Smythe’s financial difficulties.
18. Under cross-examination, Mr Richardson refuted the notion that if Mr Smythe was granted a quota, say of 5 tonnes per year, this would have little impact on overall TAC (Total Allowable Catch). Mr Richardson responded that the shark fishery was already under severe stress and if it was likely quotas would be further reduced in the near future, moreover any decision to grant Mr Smythe a quota would impact on all 200 participants in the industry. Either their quotas would have to be reduced or the TAC amended and AFMA would be reluctant to accept this.
19. Mr Richardson admitted that currently there were no guidelines as to what constituted exceptional circumstances, but explained the limited case situations AFMA had thus far dealt with. There had been 35 internal reviews of quota decisions, but only 4 had involved minor revisions of quota and 3 where exceptional circumstances were identified and accepted. The reasons were loss of a vessel, severe illness medically attested or circumstances involving delay in AFMA’s internal processes or errors in catch verification.
20. In closing submissions counsel for the applicant stressed Mr Smythe’s livelihood was under threat, he had standing to make the application for a quota and had been the victim of a chain of circumstances not of his own making. Exceptional circumstances applied and it was up to the Tribunal to recognise this and either allot quota or remit matters back to AFMA to determine allocation on the basis of past shark catches in various years other than 1994 – 1997.
21. Counsel for the respondent stated that Mr Smythe had been a cray fisherman rather than a shark fisherman for the period 1991 – 1999 and far from being a victim of circumstances, he and his partner had engaged in a series of actions of their own choosing, securing licenses and disposing of them as they thought fit. He must also have known in 1995 that obtaining a suitable vessel and a Tasmanian fishing boat license would not prove easy, this was common knowledge within the industry and on his own admission, brokers had warned him about it. There was also the issue of his standing, given that he had disposed of licenses as recently as May 2001 and in earlier period periods catch records accrued to his partner and others rather than himself.
22. Mr Read noted that although Mr Smythe was a shark fisherman between 1989 and 1991, disposal of his vessel in 1992 led to a period between 1992 and late 1994 where he was operating a leased crayfishing license, with some unrecorded shark bycatch. His illness between late 1994 and early 1995 was not particularly relevant, since he did not hold any entitlement to fish at that time and even if he had could have engaged a skipper. No details were presented as to the severity of the illness itself. Between 1994 and 1997 there is no catch history and between 1995 and 1998 he was endeavouring to obtain a boat and TFBL. It is only in 1999 and 2000 that shark fishing occurred, yet in May 2001 he disposed of the license, apparently to meet the demands of creditors. None of this represented exceptional circumstances and even if it did, Mr Smythe had no identifiable accumulated wealth or interest which might constitute standing at present. Overall AFMA’s decisions and review reasons should be accepted by the Tribunal and existing policy not be overturned.
Legislative and Policy Framework:
23. Prior to making a determination the Tribunal must be cognisant of the legislative framework and any policies AFMA may have in place, without necessarily being bound by the latter in merits review.
24. Section 3 of the Australian Fisheries Management Act 1991 (“the Act”) sets out the objectives which must be pursued by AFMA in the performance of its functions:
“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 and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non-target species and the long-term sustainability of the marine environment; and
…
(d)maximising economic efficiency in the exploitation of fisheries resources; and
(e)ensuring accountability to the fishing industry and to the Australian community in AFMA’s management of fisheries resources; and
(f)achieving government targets in relation to the recovery of the costs of AFMA.
3.(2) In addition to the objectives mentioned in subsection (1), or in section 78 of the Act, the Minister, AFMA and Joint Authorities are to be have regard to the objectives of:
(a)ensuring, through proper conversation and management measures, that the living resources of the AFZ (Australian Fisheries Zone) 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 adopted in pursuit of those objectives must not be inconsistent with the preservation, conservation and protection of all species of whales.”
25. The “precautionary principle” is defined in s.4 of the Act as having the same meaning as in clause 3.5.1 of the Intergovernmental Agreement on the Environment, a copy of which is set out in the Schedule to the National Environment Protection Council Act 1994. Clause 3.5.1 of that schedule reads:
“’Precautionary principle
Where there are threats of serious irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle public and private decisions should be guided by:
Careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
An assessment of the risk-weighted consequences of various options.”
26. It is clear from a number of case decisions that in pursuing economic efficiency AFMA is to consider net benefits to the industry as a whole and not the situation of any individual operator. See, for example, Bannister Quest v AFMA (1997) 77 FCR 503 and Dixon v AFMA and Executive Director of Fisheries WA and Northern Territory of Australia (2000) AATA 442 (5 June 2000).
27. Division 3 of the Act sets out statutory fishing rights, while Division 4, especially ss.28 and 32 deal with procedures for granting rights to fish and permits. Part 8 of the Act deals with Fishing Rights Allocation Review Panels and how such reviews should be conducted. Nowhere in this discussion is there any specific mention of “exceptional circumstances”. However AFMA’s letter of 6 September 1999 to all shark fishers and interested persons, dealing with “Management, Apportionment and Allocation of Individual Transferable Quotas for School and Gummy Shark” specifically indicates that exceptional circumstances may be considered in allotting ITQ’s.
28. The issue of “standing” is complex, but counsel for the applicant and respondent drew attention to the comments of Merkel J in the Federal Court decision concerning Trans Urban City Link Ltd v Allan (1999) 95 FCR 553 (1999) 168 ALR 687 as providing useful guidance.
Analysis
29. The Tribunal is required to stand in the shoes of the decision-maker and make the proper or preferable decision, notwithstanding what has gone before. But in so doing, the Tribunal must have regard to statutory provisions and past judicial determinations and not overturn substantive policy unless there are compelling reasons for doing so.
30. Mr Smythe finds himself in a difficult situation and the Tribunal has some sympathy with his predicament, however it must be observed that the Australian fishing industry has been undergoing major structural change during the past decade, AFMA has been striving to achieve equitable and effective adjustment and this has impacted upon individual fishermen in different ways, but none have been immune from change.
31. In Mr Smythe’s case there are three matters for the Tribunal to consider:
(a)has natural justice been observed in the treatment of Mr. Smythe’s application for quote and subsequent review decisions?
(b)does his situation constitute “exceptional circumstances” warranting allocation of an ITQ using verified catch history for years other than 1994-1997?
(c)if there is a prima facie case for granting allocation, what is Mr Smythe’s standing or interest within the industry and right to fish?
32. Documentation before the Tribunal makes it clear AFMA gave ample prior warning of intended changes within the shark fishery, including proposed introduction of ITQ’s and the need for quota applicants to provide verifiable catch histories for the period 1994-1997. It is also apparent Mr Smythe’s application for quota was appropriately treated and clear reasons were provided for the decisions made. In this sense natural justice was applied.
33. On the weight of the evidence before it, the Tribunal is of a view that Mr Smythe’s situation does not constitute exceptional circumstances. He did not suffer major loss or damage of a vessel, his illness was not of a severity or duration to threaten livelihood and for most of the period 1991-1999 he was principally working for license holders other than himself, as much in cray fishing as shark fishing. The decision to sell a vessel in 1992 was a domestic arrangement and in 1995 advice was available it might take considerable time to obtain a suitable vessel and TFBL (Tasmanian Fishing Boat License). Even when shark fishing was commenced in 1999, there were circumstances which ultimately dictated selling the license in May 2001. In short, events were not some unanticipated quirk of fate, but largely determined by personal decisions of Mr Smythe and his partner.
34. Given that his claim of exceptional circumstances fails, the issue of “standing” is perhaps less pertinent but must still be considered. At face value it was perfectly reasonable for Mr Smythe to make application for an ITQ in the Southern Shark Fishery for year 2001, since he possessed experience in that fishery and verifiable catch records for two years prior to application. What was and is more problematical is that he subsequently disposed of his license prior to the Tribunal hearing and thus it could be construed he had no estate or “interest” in the fishery at a time when quota allocation was being considered. Even if he had secured a quota this would have needed to be attached to some other person’s license. Mr Smythe claimed to have an agreement of this kind, but no evidence was produced to substantiate this assertion. In any event, quota allocation to Mr Smythe would also have impinged upon the rights (or interests) of other participants in the shark fishery. A tangled web indeed!
35. The issue of “standing” has been authoritatively addressed in a number of Federal Court and High Court decisions and the complexities summarised in some degree in the Full Court decision Re Transurban City Link Ltd v Allan (1999) 95 FCR 553, (1999) 168 ALR 687. It is understand that the High Court heard an appeal on 23 May 2001 and reserved its decision. The Tribunal has made no attempt to attach an interpretation to the current case, but clearly it is in the interests of both parties concerned to monitor the outcome of the High Court decision.
Decision
36. The decision under review is affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis A.M. (Part-time Member)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 6 July 2001
Date of Decision 27 July 2001
Counsel for the Applicant Mr A Buckley
Solicitor for the Applicant Wilson Dowd
Counsel for the Respondent Mr K Read
Solicitor for the Respondent Australian Government Solicitors
2
6
0