Stevens and Australian Fisheries Management Authority
[2005] AATA 370
•22 April 2005
|
DECISION AND REASONS FOR DECISION [2005] AATA 370
ADMINISTRATIVE APPEALS TRIBUNAL )
)V2005/36
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | JOE STEVENS | ||
Applicant
| And | AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY |
Respondent
INTERLOCUTORY DECISION
| Tribunal | Justice Downes, President |
Date22 April 2005
PlaceSydney
| Decision | Application for extension of time refused. |
..............................................
President
REASONS FOR DECISION
| Justice Downes, President |
Joe Stevens is a fisherman. He carries on his business, at least in part, in what is known as the Shark Fishery.
On 24 December 2004 the Australian Fisheries Management Authority sent by registered post to Mr Stevens his permit for the 2005 year. The permit is numbered 27349P. The permit was sent to him with other material, including an undated letter signed by Ryan Murphy as Manager, Licensing and Quota Management, AFMA.
This letter informed Mr Stevens, “There are steps you can take if you do not agree with this decision.” The letter went on to advise that an application could be made for reconsideration of the decision which lay behind the grant of the licence within 21 days from the receipt of the letter. It also advised that an application could be made to extend the 21 day period by writing to, "Manager, Licensing and Quota Management, AFMA, PO Box 7051, Canberra BC ACT 2610". The letter did not suggest that an application for extension of the 21 day period was required to be made within the 21 day period.
There is no precise evidence before me as to when the licence and accompanying letter was received by Mr Stevens. However, given that it was posted on Christmas Eve, it is unlikely that it was received before, at least, 28 December 2004. If it was received on that date the 21 day time limit would not have expired until 18 January 2005.
There is no doubt in my mind that Mr Stevens wished to challenge the decision. However, he did not go about it in accordance with the requirements set out in the letter. What he did was produce a letter dated 6 January 2005, addressed, "Dear Panel". This letter said:
In view of the AFMA shark quota allocation policy being deemed an inappropriate formula for allocating school and gummy shark ITQs, amongst myself and other stakeholders. Please accept this application as an aggrieved stakeholder and wish to have my quota holdings increased to the average catch rates of other A10 licence holders or revert back prior to 2001.
I think that the reference to Panel in this letter is a reference to a group which is either within AFMA or that advises AFMA. However, notwithstanding the clear words of the letter sent on 24 December as to how application for reconsideration should be made, Mr Stevens did not send his letter of 6 January to AFMA in Canberra or, for that matter, to AFMA anywhere.
Mr Stevens decided to make an application for review of the decision relating to his allocation of quota to this Tribunal. He made that application on 17 January 2005. It seems that either at that time or earlier he lodged or sent his letter of 6 January to the Tribunal. It follows that, to the extent to which Mr Stevens did two things within the 21 day period, they both involved forwarding documents to this Tribunal, which were not contemporaneously sent to AFMA.
Because it appeared on the face of the application of 17 January that it was out of time, this Tribunal communicated with Mr Stevens that he would need to make an application for extension of time. In the meantime no notice was given to AFMA by the Tribunal.
In due course an application for an extension of time was made by Mr Stevens, and that was notified to AFMA. That notification was apparently received on 11 February 2005, which was outside the 21 day period. The evidence shows that it was receipt of that notification on 11 February 2005 which was the first occasion on which AFMA became aware of Mr Stevens' wish to have his quota reconsidered.
I say that the material gave notice of Mr Stevens' wish to have his quota reconsidered, but I do accept that that involves a rather beneficial construction of the documents. I have set out the letter of 6 January, which does not in terms refer to the allocation forwarded with the letter of 24 December. The application for review seeks to address a decision which was made in October 2003 and is suggested by the application to have been received on 17 October 2003.
What is before me today is the application for an extension of time to commence the proceedings. It is now agreed that rather than referring to a decision of October 2003, it should refer to the decision communicated with the letter of 24 December 2004, and I propose to deal with the matter on that basis.
The respondent, AFMA, opposes the application. What I must consider is whether I should allow the application for an extension of time. I must say at the outset that, given the fact that Mr Stevens demonstrated a wish to have the allocation reconsidered within the 21 day period, that it is likely, if any matter of discretion arose for my consideration as to the granting of an extension of time to commence proceedings, that I would exercise that discretion in favour of the applicant. However, it seems to me that there is a prior matter which I need to consider, and that is whether the Tribunal has jurisdiction to review any decision presently in existence.
It has many times been said that the jurisdiction of the Tribunal is a pure statutory jurisdiction. Unless a statutory provision conferring jurisdiction on the Tribunal can be found, then the Tribunal simply does not have jurisdiction. Regrettably, I think that that is the position in the present case, and I will now give my reasons.
The relevant jurisdiction of the Tribunal is to be found in s 165 of the Fisheries Management Act 1991. The particular subsection of that section conferring jurisdiction on the Tribunal is subsection (7), which provides:
An application may be made to the Administrative Appeals Tribunal for a review of a reviewable decision.
It follows that the jurisdiction of the Tribunal is only attracted when there exists a reviewable decision. “Reviewable decision” is defined, in subs 165(1) of the Act, to mean, “A decision of AFMA under subsection (5)”. Subsection (5) imposes an obligation on AFMA: “Within 45 days after receiving the request, [to] reconsider the relevant decision” and provides that AFMA:
“...may make a decision:
(a)in substitution for the relevant decision whether in the same terms as the relevant decision or not; or
(b) revoking the relevant decision.”
It seems to me that subsection (5) is only attracted after receipt of a request for reconsideration. Subsection 165(2) provides for applications to be made for reconsideration. It provides as follows:
“A person affected by a relevant decision who is dissatisfied with the decision may:
(a) within 21 days after being notified of the decision; or
(b)within such further period (if any) as AFMA, upon application made under subsection (3), by written notice to the person allows;
request AFMA, in writing, to reconsider the decision.”
Subsection 165(3) provides that a person:
“(b)efore the end of the period mentioned in paragraph 2(a), may apply to AFMA for an extension of time ...”
It will be noticed that both subs 165(2) and (5) refer to a “relevant decision”. “Relevant decision” is also defined in section 165 and covers a number of decisions which are made by AFMA in the course of its duties and includes a decision of the kind which was made and as a result of which the allocation was made to Mr Stevens which was communicated to him with the letter sent on 24 December 2004.
The problem, as I see it, is that subs 165(7) authorises the Tribunal to review a reviewable decision. Nothing authorises the Tribunal to review a relevant decision. In the present case there only is a relevant decision. Notwithstanding Mr Stevens' efforts to have the relevant decision reviewed no request was ever made for a reconsideration of the relevant decision within the time limited in the section. To make a finding to the contrary would require a finding that an application to the Tribunal for review of a decision, notice of which was not given to AFMA, was an application for AFMA to reconsider the decision. Much as I have indicated I have sympathy with Mr Stevens' position I cannot see how the application for review could be so construed. It does not seem to me that the letter of 6 January is in any different position. It does not talk about reconsideration. It does not identify the decision of December. It was not sent to AFMA. It follows that there was no document created which in terms asked for a reconsideration and that the only documents that can be pointed to as possibly satisfying the statute were not sent to AFMA until they got there indirectly well outside the 21 day period.
If the 6 January document had been sent directly to AFMA it might have been sufficient to constitute a reconsideration. I guess that that is the way the document would have been treated. At worst AFMA would have asked Mr Stevens if he wanted it treated as such. However, because the document did not get to AFMA in time it seems to me that it could not be regarded as a request under the section.
In these circumstances, there having been no request, subs (5) was not attracted. Accordingly, there was no reconsideration of the decision and in consequence no decision which satisfies the definition of reviewable decision has ever come into existence. There are, therefore, in a sense two associated reasons why there is no reviewable decision. First, there never was a complying request for a reconsideration decision. Secondly, and for whatever reason, there simply is no reconsideration decision which amounts to a reviewable decision.
The result of all of this is that the Tribunal simply does not have jurisdiction. There is no decision which is reviewable by the Tribunal.
On behalf of the applicant reliance has been placed on the provisions of subs 42(d) and s 43 of the Administrative Appeals Tribunal Act 1975. Subs 42(d) permits a matter to be remitted to the decision-maker by the Tribunal “at any stage of a proceeding for review of a decision”. Section 43 of the Act provides in part :
“The Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision.”
These sections of the Act are relied upon as giving the Tribunal jurisdiction to take up the matter for itself and if it thinks it appropriate to do so to send it back to AFMA for reconsideration.
There is no doubt that the Tribunal has very wide powers in dealing with a matter before it. However, the problem in the present case is that it does not have a matter before it. There is no decision which is reviewable by the Tribunal and so nothing before the Tribunal answers the description of “the decision” in the passages I have just quoted from subs 42(d) and s 43.
In Australian Securities and Investments Commission v Donald (2003) 136 FCR 7 the Full Federal Court discussed the extent of the powers of the Tribunal under s 43 of the Act. That decision recognises the width of the powers of the Tribunal when there is a decision before the Tribunal for review. However, it also recognises that where a matter is not before the Tribunal the mere fact that the Tribunal could exercise wide powers if it did have jurisdiction does not assist. Indeed, in my judgment in that case I drew a distinction between jurisdiction and remedy (19ff [49] ff) that seems to me to be relevant to this matter.
It has been suggested on behalf of the applicant that AFMA has in the past considered applications for reconsideration made out of time. Although there is some evidence before me touching upon this aspect it does not seem to me that it is satisfactory enough to enable me to make any finding. In any event, having regard to the decision I have already arrived at it is not a matter which is relevant for me to determine.
In the present case, I do not think that there is anything so far which is an application for reconsideration. There is, of course, no reason why the applicant could not now make application for reconsideration and if the practise is as the applicant suggests then such an application for reconsideration may be successful.
I will mention one final matter. On a number of occasions the Authority has reminded me that there are listed before me in Melbourne on 16 May a number of applications for review of the policy underlying quota or allocation in the Shark Fishery. It has invited Mr Stevens to seek to be heard in that application. As I understand it, it would still not oppose Mr Stevens seeking to be heard in that application or even to be joined in it. I note, however, that it does not follow that, by being a party to that application, Mr Stevens could raise all or even any of the matters that he would have wished to raise if he had been successful in bringing proceedings in his own name before the Tribunal. It also may be that it is too late in connection with that application, for any changes to be made to the 2005 allocation.
Mr Stevens' attitude, through his lawyer, has been to resist the suggestion that his client might like to consider being involved in the application in May. As I understand it, AFMA makes no application itself for Mr Stevens to be joined in those proceedings. It is entirely a matter for Mr Stevens as to whether he considers it appropriate to be joined in those proceedings. I do not know enough about what Mr Stevens would have said in this matter before the Tribunal if it had been able to go forward. Nor do I know enough about the issues in the 16 May matter to offer any view as to whether Mr Stevens would be advantaged or disadvantaged by seeking to take some part in those proceedings. However, it does seem to me that to the extent to which he has not done so it may be appropriate for Mr Stevens to give consideration to whether something might be gained by his being involved in those proceedings.
He would not of course be required to be present for the whole of the proceedings and no doubt could communicate with others who are involved in the proceedings who have, assuming this to be the case, a similar attitude to Mr Stevens.
I think the only formal decision that it is appropriate for me to make in this matter, there not being an application before the Tribunal to be dismissed, is simply that I decline the application for an extension of time to commence proceedings in the Tribunal and I do so on the basis that the proceedings, if commenced, would be bound to fail for the reasons I have given.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President
Signed: ............................................................................
Peter Pikis, Associate
Date of Hearing 22 April 2005
Date of Decision 22 April 2005Solicitor for the Applicant Thomson Rich O’Connor (Mr Clive O’Connor)
Counsel for the Respondent Ms Debbie Mortimer SC
Solicitor for the Respondent Dibbs Barker Gosling (Ms Ann Dornau)
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