Spralja and Australian Fisheries Management Authority
[2000] AATA 256
•30 March 2000
DECISION AND REASONS FOR DECISION [2000] AATA 256
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V1998/401
GENERAL ADMINISTRATIVE DIVISION )
Re STEVE SPRALJA
Applicant
And AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
DECISION
Tribunal Mr B. H. Pascoe, Senior Member Mr A. Argent, Member Mr I. L. G. Campbell, Member
Date30 March 2000
PlaceMelbourne
Decision The Tribunal varies the decision under review by remitting the matter to the respondent with a direction to adjust the quota of key species related to the applicant's permit on the basis of additional evidence supporting an increase in the applicant's verified catch between 1988 and 1993.
........(Sgd) B. H. Pascoe...............
Senior Member
CATCHWORDS
FISHERIES – South East Non-Trawl Fishery – fishing permit – quota attached to permit – management of fishery – statutory management objectives – development of management policy adopting output controls – allocation of quotas based on verified catch history between 1 January 1988 and 27 May 1993 – whether quota correctly allocated
Fisheries Management Act 1991 s. 165
Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 48 ALD 53
Re Bolding and Australian Fisheries Management Authority [1999] AATA 494
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 630
Re Dunnachie and Australian Fisheries Management Authority [1999] AATA 188
REASONS FOR DECISION
30 March 2000 Mr B. H. Pascoe, Senior Member Mr A. Argent, Member Mr I. L. G. Campbell, Member
This is an application to review a decision of a delegate of the respondent pursuant to section 165 of the Fisheries Management Act 1991 ("the Act") to affirm the imposition of conditions on the applicant's fishing permit setting restrictions on the taking of blue eye trevalla, pink ling and blue warehou ("the key species").
At the hearing the applicant was unrepresented and the respondent was represented by Ms A. Dornau, a solicitor. Evidence was given by the applicant and by Mr G. Richardson, Senior Manager Southern Fisheries with the respondent.
The background to this application is similar to that considered by the Tribunal in Re Bolding and Australian Fisheries Management Authority [1999] AATA 494 in which the history of such restrictions was set out. The facts were further set out in the statement of facts and contentions filed by the respondent and were not disputed by the applicant. These facts were stated as:
"1.The applicant is an 'A6 gillnetter' who operated in the South East Non-Trawl Fishery (SENTF) until the commencement of 1993.
2.The SENTF is broadly located in the Australian Fishing Zone, in waters that extend from Fraser Island, Southern Queensland, to the border between Western Australia and South Australia. The Southern Shark Fishery (SSF) and the South East Trawl Fishery (SETF) are generally located in the same waters. The SSF lies adjacent to the coastal waters of Victoria, Tasmania and South Australia. The principal species taken in the SSF are school and gummy shark and the fishing methods are demersal gillnet and demersal longline.
3.The principal species taken in the SENTF are blue eye trevalla, ling and blue warehou. The methods used for taking these species in the SENTF are all those that take demersal (bottom dwelling) scalefish, other than Danish seine and trawl – including droplines, trotlines, demersal longlines, gillnets, traps and purse seine.
4.Gillnets are a type of net that are set with the bottom of the net anchored to the ocean floor and the top of the net floating in the water column. These kinds of nets are used to target shark (in the SSF) and also to catch a variety of other fish which fall within the description of 'scalefish' – blue eye trevalla, ling and blue warehou. Some scalefish are primarily caught by gillnets (such as blue warehou) and some are primarily caught by other methods such as hooks (eg blue eye trevalla) but there is some overlap.
5.The term 'A6 gillnetter' was adopted on the basis of the categorisation of fishermen in the SSF according to the number of gillnets they were permitted to use in that fishery under the Southern Shark Fishery Management Plan 1988 (the SSF Plan), … . SENTF operators are only entitled to use gillnets in the SENTF on the basis of their SSF entitlement.
6.The SENTF was administered by the Commonwealth Department of Primary Industries and Energy before February 1992 and, from February 1992, has been administered by the Respondent (AFMA) under the Fisheries Management Act 1991 (the FM Act).
7.At the beginning of 1993, the SENTF was managed by AFMA through controls on entry to the SENTF – those controls consisted of the restricted issue of fishing permits under s 32 of the FM Act. At that time, no limits were placed on the quantity of fish that could be taken by any permit holder.
8.On 27 May 1993, the Managing Director of AFMA and the Directors of State Fisheries issued a joint media release in relation to the SENTF – expressing concern about the non-trawl sector increasing fishing effort while trawl operations were constrained and about over-exploitation of the resource and referring to previous warnings against increased investment in the fishery – T3.
9.On 28 July 1994, the SENTF Consultative Committee recommended that access criteria for the non-trawl sector should be based on each operator's commitment to the fishery in the 5 years prior to the 27 May 1993 media release – T4.
10.On 5 September 1994, AFMA issued a media release, publicising the recommendation of the SENTF Consultative Committee and warning that operators should not increase their fishing effort or investment in the non-trawl sector of the South Eastern Fishery – T5.
11.In April 1995, AFMA issued a discussion paper of The SENTF Sector – Draft Criteria for Future Access – T6.
(a)The discussion paper proposed that only persons holding or entitled to hold a Commonwealth fishing permit at the time that access criteria were applied in relation to the SENTF would be considered for access, and 'only the person holding the Permit/licence package at the time of the applicant would be eligible'.
(b)The paper proposed that operators who had taken any of three species (Blue Warehou, Blue-Eye Trevalla and Ling) over the qualifying period (1 January 1988 to 27 May 1993) would continue to operate in the fishery and be involved in discussions on a method of allocating quota for the non-trawl sector; and 'catch history during the qualifying period will be a major factor in determining the future level of access to the fishery' for those species.
(c)The paper also proposed that 'Access would be based solely on verified catch history for relevant species'; and the proposed range of documents that could be used for the purposes of establishing verified catch history was set out in the paper. The documents included 'logbooks … in conjunction with other verified catch records'.
12.On 7 August 1995, AFMA wrote to all permit holders in the SENTF (including the applicant), enclosing a copy of AFMA's paper, Criteria for Access to the Non-Trawl Sector of the South East Fishery, and inviting each permit holder to submit its verified catch history – T7, T8.
(a)The paper stated that the qualifying period for access to the non-trawl sector was 1 January 1988 to 27 May 1993 (based on the media releases) for the relevant waters.
(b)The paper identified catch thresholds and stated that each permit holder's 'catch history will be a major determinant of your future level of access'.
(c)The paper declared that operators would be required to produce documents to enable AFMA to verify their total catch summary and identified the documents that could be used to verify catch history:
(i) landing documents from fish co-operatives and relevant fish marketing authorities;
(ii) invoices, receipts sales dockets, and carrier consignment notes;
(iii) bona fide financial records including tax returns; or
(iv) logbooks (either State or Commonwealth).
(d)However, the paper cautioned that, if logbooks or taxation returns were to be used to verify catch history, 'you must also use at least one of the other forms of documentation listed above'.
13.In October 1995, the applicant returned the completed Summary of Catch History to AFMA in respect of the fishing vessel Arna – T9. The applicant claimed to have caught –
10,942 kg of Blue Warehou and 222 kg of Ling in 1988;
54 kg of Blue Eye Trevalla, 19,250 kg of Blue Warehou and 1,240 kg of Ling in 1989.
432 kg of Blue Eye Trevalla, 25,124 kg of Blue Warehou and 2,642 kg of Ling in 1990.
142 kg of Blue Eye Trevalla, 12,383 kg of Blue Warehou and 955 kg of Ling in 1991; and
7,553 kg of Blue Warehou and 104 of Ling in 1992.
The documents identified as verifying the claimed catch history were Co-operative or Fish Marketing Authority landing dockets.
14.On 18 January 1996, two AFMA officers attended at the applicant's premises in Lakes Entrance to verify the applicant's SENTF catch history. The applicant produced Lakes Entrance Co-operative summary forms. The officers conducted the verification process, noting that the applicant believed there was some catch of blue warehou landed to Vic Rodahl at Eden Fishpackers but that he had lost the invoices. The officers advised the applicant to contact Vic Rodahl to locate a copy of the invoice. T10.
15.On 6 June 1996, AFMA provided the applicant with a verified catch history report – T11, T12. The covering letter stated that the applicant should only sign and return the verified catch history report if he agreed with the information contained in the report.
(a)The report showed the following (relevant) verified catch history in the SENTF for the years 1988 to 1995 – T12/98:
10,942 kg of Blue Warehou and 222 kg of Ling in 1988;
49 kg of Blue Eye Trevalla, 18,275 kg of Blue Warehou and 1,240 kg of Ling in 1989.
432 kg of Blue Eye Trevalla, 25,124 kg of Blue Warehou and 2,642 kg of Ling in 1990.
142 kg of Blue Eye Trevalla, 12,383 of Blue Warehou and 955 kg of Ling in 1991; and
7,553 kg of Blue Warehou and 104 kg of Ling in 1992.
(b)On 30 June 1996 the applicant signed the verified catch history report and returned it to AFMA together with a copy of the catch history verification report on which he had written, 'The true fact is that we did unload 60 Boxes (30 kg boxes) in Eden but it is impossible to obtain the record from Eden Fishpackers.' T13
16.In September 1997, AFMA issued Fisheries Paper Number 8 – Allocation of Fishing concessions Where Management Arrangements Change – T14.
(a)In Part 3 of the paper, AFMA stated that the objectives expressed in paras 3(1)(a), (b) and (c) of the Fisheries Management Act 1991 were considered fundamental to any change in the management arrangements for a fishery. Pursuit of those objectives indicated the need to move from input to output controls.
(b)In Part 4 of the paper, AFMA stated that, because of the need to avoid weakening fishing concessions and impeding effective fisheries management, the fishing arrangements in existence in a fishery at the time that management arrangements change would be taken into account under any allocation of concessions required by the move from one management regime to another.
(c)In Part 5 of the paper, AFMA stated that an independent Allocation Advisory Panel (AAP) would be established to advise the AFMA Board on the most appropriate system for allocation [of] fishing concessions.
17.The AAP called for written submissions from permit holders in the SENTF and held six public meeting in four States – T15.
18.A public meeting was held in Lakes Entrance on 21 October 1997. The applicant attended and made a written submission to the panel. T17
19.In his written submission, the applicant urged the AAP not to take into account his catch history for 2¼ years following 1991, for the following reasons:
(a)During this period he, as an A6 gillnetter, had suffered a 33% net restriction as opposed to A10 gillnetters whose nets had been reduced by 30%. The applicant argued that his fishing efficiency had been reduced by 45% as a result of these restrictions. As an alternative the applicant argued for an allocation based on unit holdings or catch history for the years 1965-1970 or 1985-1990.
(b)He had suffered from ill health from 1985. In July 1989 due to a life threatening illness he was forced to employ a skipper to run the Arna on a full time basis. He was therefore unable to amalgamate to an A10 gillnetter. The applicant attached a report form [sic] Mr Baxter, otolaryngologist dated 19 March 1991 to support this claim. T17/130
20.On 27 November 1996, the AAP reported to AFMA – T18.
(a)The AAP noted that AFMA had warned non-trawlers not to increase fishing effort beyond 27 May 1993 and stated its intention not to take account of catch history after that date.
(b)The AAP said that adherence by AFMA to that statement was integral to the pursuit of AFMA's three principal statutory objectives, in the course of which the warnings and the statement of intention were given.
(c)The AAP concluded that the differential impact of changing the management regime to a system of individual transferable quotas was best minimised by comparing each operator's catch history in respect of each species with the corresponding catch history [of] other permit holders.
(d)The AAP recommended that the total allowable catch (TAC) should be allocated between the trawl and non-trawl sectors in the South Eastern Fishery on the basis of relative catch histories in the 4 years 1988 to 1991 – namely, the years before the trawl sector was subjected to output controls and the years for which there were verified catch histories.
(e)The AAP recommended that the share of the TAC allocated to the non-trawl sector should be allocated as individual transferable quotas (ITQs) amongst the permit holders in the SENTF by reference to their respective catch histories between 1 January 1988 and 27 May 1993. To go beyond 27 May 1993 would risk conferring a benefit on those who ignored the warning and, unless there were 'quite extraordinary compelling circumstances', fail to pursue of [sic] the statutory objectives in pursuit of which the warning was given.
(f)The AAP proposed that basing the allocation within the SENTF on each permit holder's catches in its best 3 periods (there being 6 periods) was the preferable means of obviating apprehended disadvantage that might result from any circumstances which disadvantaged a particular permit holder.
21.The recommendations of the AAP were adopted by the Board of AFMA on 4 December 1997.
22.On 12 December 1997, AFMA notified the applicant of his verified catch history in the SENTF and his provisional allocation of ITQ for the SENTF – T19. The ITQ allocated to the applicant was:
2,371 kg of Ling;
124 kg of Blue Eye Trevalla, and
1,3587 [sic] kg of Blue Warehou.
23.On 22 December 1998, the Respondent issued the applicant with a fishing permit for the SENTF – T20.
(a)The permit authorised the use in 1998 of the boat Arna in the SENTF, using 6 gillnets that are 420 metres long by 20 meshes deep with a total length of headrope not exceeding 2,520 metres.
(b)Attachment B of the permit specifies the applicant's entitlement to the quota species as described in paragraph 22 above. T20/162
24.On 24 December 1997, Mssrs Thompson Rich O'Connor wrote to AFMA on behalf of the applicant, requesting a review of the delegate's decision on the basis that the quota allocation was inadequate. – T21.
25.The applicant made a written submission to the internal delegate in February 1998. T24 The applicant again contended that his illness from 1985:
forced him to employ a succession of skippers who were unable to achieve the equivalent of his previous catch record, he therefore contended that an imputed catch be applied to him during the qualifying period;
caused him to suffer financially so that he was unable to amalgamate to an A10 gillnetter.
The delegate was also asked to consider deficiencies in the applicant's catch records caused by his skippers' practice of landing fish in ports other than Lakes Entrance but not keeping adequate records.
26.On 10 March 1998, a delegate of AFMA affirmed the decision of AFMA to allocate to the applicant 124 kg of Blue Eye Trevalla quota, 2,371 kilogram of Ling quota and 13,587 kg of Blue Warehou quota – T27.
27.An application for review was lodged with the AAT on 14 April 1998 – T1.
28.During the course of these proceedings the applicant has submitted a number of additional receipts in support of his claim that he had not been awarded his correct verified catch history. These have been carefully considered by the respondent, …, according to the SENTF catch verification procedures. As a result, the applicant's verified catch of blue warehou for 1991 has been increased from 12,383kg to 13,358.5kg. This in turn will increase the applicant's ITQs for blue warehou."
A further factor in the history of the restrictions which is relevant to this matter was that the 1988 Management Plan categorised operators as either A or B. Category A operators, of which Mr Spralja was one, were initially allocated 6 nets of 600 metres length. Initially transfers of licences were not permitted other than to immediate family members. However, between 1 April 1988 and 31 May 1990, holders of Category A endorsements were entitled to amalgamate but required to forfeit two nets. This provided an option of selling out of the industry with the acquirer becoming what was known as a "A10 gillnetter". Eighty operators participated in the amalgamation resulting in 40 holders of A10 licences.
The principal arguments of Mr Spralja were that:
(a)As a consequence of illness he was unable to participate in the amalgamation within the required period;
(b)The illness restricted his ability to fish in the relevant period and he was forced to employ a captain for his vessel;
(c)Part of his catch during the relevant period was not recorded; and
(d)The reduction in allowable nets from six to four in 1991 reduced the available catch.
Mr Spralja said that he had ear and headache problems since 1985 but first consulted his doctor in relation to them in October 1988. He was referred to a specialist in 1989 and had his first operation in October of that year with three subsequent operations. He first employed a captain for his boat and ceased active involvement in fishing in July 1989. He said that concern about his health meant that he did not pursue amalgamation although he was financially able to acquire another A6 licence. He maintained that he had always understood that there would be a further opportunity for amalgamation after 31 May 1990 but this had not occurred. His opinion was that those who had amalgamated between 1988 and 1990 had taken control of the industry and those who had not amalgamated had been discriminated against. As a result, he took a strong view that the split between A10 and A6 licences should not have happened.
Mr Spralja was insistent that his illness and the need to appoint a captain for his boat had reduced the catch of the key species between 1988 and 1993. While he accepted that his recorded catch of shark had increased from 21,000 kg in 1991 to 40,000 kg in 1993, he argued that costs had increased and there had been a reduction in profit. He maintained that he had lost money on his operations in recent years.
Mr Spralja was very strong in his views on the allowed net sizes. He maintained that the reduction of A10 operators from 10 nets to 6 nets brought them back from an excessive and uneconomic length to an appropriate level. However, he believed that the reduction of A6 operators from 6 nets to 4 nets was not economic as an operator was required to work harder and make more drops with consequent higher costs and increased wear and tear on the boat and gear. He was of the view that the allowed mesh size had resulted in those with longer nets to diminish the stocks of the key species and to be rewarded with larger quotas.
Unfortunately, it was not clear what Mr Spralja was seeking by way of a specific decision. The tenor of his evidence and submissions was primarily directed at the whole system of net sizes and the method of management adopted. In the ultimate, his request was to be given a quota for the key species equal to the lowest quota of an A10 operator. He was unable to say what that quota would be and neither he nor the Tribunal had that information. It is clearly possible that such a quota could be lower than that allocated currently to Mr Spralja. In a subsequent letter, Mr Spralja proposed a quota of "between 20 and 30 ton Ling and between 30 and 40 ton Blue Warehou". This is very significantly higher than his quota and his highest recorded catch between 1988 and 1993.
It was submitted for the respondent that the quota conditions imposed on the applicant were in accordance with the policy developed by the respondent after extensive consultation and the Tribunal should not depart from such policy. It was said that the applicant had an opportunity to amalgamate from April 1988 and that the earliest medical treatment for his ear problems was some 14 months after receipt of advice that such amalgamations were permitted. Ms Dornau submitted that the applicant had made business decisions not to amalgamate, not to sell his licence, to appoint a skipper and not to use longlines (which were permitted to 1992). It was argued that his catch history showed no reduction of shark catch after the requirement to reduce nets in 1991. In addition, it was submitted that the applicant had not continued to fish for the key species since the quota was established and there was no evidence that he would recommence if his quota was increased.
As stated earlier, the major part of Mr Spralja's evidence and submission were directed at the policy overall not specifically at the quota for the key species. In Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 Brennan J said at page 645 that the Tribunal should apply a lawful policy "unless there are cogent reasons to the contrary". In Re Dunnachie and Australian Fisheries Management Authority [1999] AATA 188 this Tribunal was satisfied the policy development was guided by the objectives required to be pursued in the management of the SENTF. The Tribunal in that case was considering very similar issues to those involved here and noted (at paragraph 46):
"46. The history of the development of the management policy, key features of which were outlined earlier, reveal that the policy under which the reviewable decision was made, developed by a transparent process which included press releases, discussion papers, port meetings, the establishment of consultative committees, appointment of an advisory panel, the taking of scientific advice for assessment and sustainability of fish stocks, and consultation with the industry in relation to management proposals."
The Tribunal was faced also with a similar problem to that raised in this case, in that any increase in an individual quota must necessarily reduce quotas allocated to other operators, in that each quota represents a percentage of the total allowable catch of the key species. The Tribunal noted the comments of Drummond J in Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 48 ALD 53 where His Honour said that the focus of the policy is on the fishery as a whole not individual operators without regard to the position of other operators.
A further difficulty faced by the applicant in this case is that the two grounds of objection to the quota are based on his illness and what may have happened if this had not occurred. All of this happened nearly ten years ago. Even if illness distracted Mr Spralja from effecting an amalgamation by acquiring another licence, it is impossible to say now that he would have done so. What he may have done then is purely hypothetical. The simple facts are that he was aware of the change in policy in April 1988 and did not do anything about it. While there is evidence of the amount of his catch in the years relevant for the establishment of his quota, we have no evidence of whether it would have been greater and by how much if he had not had an illness during the period.
Mr Spralja's views on the effect of the reduction of net size in 1991 are honestly held and are the views of an experienced fisherman. However, they are simply his views which are not necessarily supported by others and, again, the evidence of his actual catch during the period goes against accepting them as a reason for increasing his quota. At the hearing there was some dispute as to the shark catch of Mr Spralja's boat in 1999. The respondent's figures showed 32,346 kg while the applicant believed that the correct figure was 19,844 kg. In part, at least, the explanation may be that the respondent's figures converted the catch figure entered by the skipper from headed and gutted weight to whole or "green" weight. The apparent headed and gutted weight recorded by the respondent for that year appeared to be 21,564 kg which is much closer to that alleged by Mr Spralja. In any event, we do not consider that anything turns on these figures. They were quoted by the respondent to indicate that maintained shark catches in 1999 at a level consistent with or greater than that of earlier years. The figures were produced to show that the catch of the key species had reduced significantly since 1992. As the sole question before the Tribunal is whether the applicant's quota for the key species should be increased, the issue of the shark catch in 1999 is not directly relevant.
In the ultimate we must affirm the basic decision under review for the principal reason that Mr Spralja has not been able to be specific as to what he is seeking, nor provide specific evidence that the method of calculating the quota was inappropriate in his case. What he asked for, the lowest quota of an A10 operator, is particularly unspecific and provides this Tribunal with no way of knowing what such a quota might be and what effect such a quota for Mr Spralja will have on other operators in the industry. Further, his case has not been assisted by the fact that he has made no effort to fill the present quota. Whilst there may be reasons for this, there is no evidence to suggest that any efforts would be made to catch an increased quota. Mr Spralja argued that the numbers of the key species had been diminished by over-fishing and the small quota allowed to him did not justify the trouble to adjust gear and seek out such species.
Mr Spralja argued that part of his catch in the period relevant for establishment of the quota had not been recorded. He stated that, "in those days everybody caught illegal fish which went through the black books". In addition, he maintained that some of the catch had been unloaded at another port and not included. Prior to and at the hearing, Mr Spralja was able to produce some evidence of further catches and the respondent accepted that an appropriate adjustment to the quota was warranted and would be done.
The result of the foregoing is that the decision under review is varied by remitting the matter to the respondent with a direction to adjust the quota of key species related to the applicant's permit on the basis of additional evidence supporting an increase in the applicant's verified catch between 1988 and 1993.
I certify that the sixteen (16) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B. H. Pascoe, Senior Member
Mr A. Argent, Member
Mr I. L. G. Campbell, MemberSigned: .....................................................................................
Personal AssistantDate/s of Hearing 31 January 2000
Date of Decision 30 March 2000
Solicitor for the Applicant N/A
Solicitor for the Respondent Ms Ann Dornau, Ladbray Consortium
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