Trotline Fishing Enterprises Pty Ltd v Minister for Fisheries; Cruickshank v Minister for Fisheries

[2002] NSWADT 31

CITATION:	Trotline Fishing Enterprises Pty Ltd -v- Minister for Fisheries; Cruickshank -v- Minister for Fisheries [2002] NSWADT 31
DIVISION:	General Division
PARTIES:	APPLICANTS Trotline Fishing Enterprisres Pty Ltd; Robert Cruickshank REPONDENT Minister for Fisheries
FILE NUMBER:	003285; 003284
HEARING DATES:	21/03/2001
SUBMISSIONS CLOSED:	04/10/2001
DATE OF DECISION:	03/08/2002
BEFORE:	Rice S - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994
CASES CITED:	Greenaway-v- Director, Department of Fisheries [2000] NSWADT 158
REPRESENTATION:	APPLICANTS J Pearce, barrister RESPONDENT N Francey, barrister
ORDERS:	1. The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicants are not eligible for an Ocean Trap and Line Restricted Fishery Line Fishing (Eastern Zone) endorsement, is affirmed.; 2. The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicants are not eligible for an Ocean Trap and Line Restricted Fishery Line Fishing (Western Zone) endorsement, is affirmed.; 3. Pursuant to s88 of the Administrative Decisions Tribunal Act I make no award of costs.

1 I am not satisfied that the applicants hold a commercial fishing licence. Even if they do hold a commercial fishing licence, I am satisfied that the applicants are not eligible for the endorsements they seek. And even if the applicants can establish their eligibility, Government policy precludes the endorsements being granted.

2 The applications are therefore unsuccessful, and the Minister’s decision is affirmed.

Application

3 This decision relates to two applications which were heard together: No 003285: Trotline Enterprises Pty Ltd and Minister for Fisheries, and No 003284: Robert Cruickshank and Minister for Fisheries.

4 Trotline Enterprises Pty Ltd (‘Trotline’) and Mr Cruickshank are the applicants in these proceedings. The applicant Mr Cruickshank is a fishing boat skipper who works with Trotline, and his claim for eligibility is co-extensive with Trotline’s. He relies on so much of the Trotline history as he took part in as a skipper for Trotline, and did not purport in this application to have grounds for an entitlement other than those relied on by Trotline.

5 The applicants in these proceedings are not however the parties who have, over the years, been applicants for fishing licences in the history of this matter. There are two other parties to the events. A Mr Nolan is a director of Trotline. A Mr Bromley was once a director, and was Mr Nolan’s partner in the venture which led to the incorporation of Trotline. Mr Bromley is no longer a director and is not involved in or affected by these proceedings. I refer more frequently to the applicant Trotline than to the applicants together, as much of the activity, particularly early applications for licences, were undertaken by Mr Nolan on behalf of the applicant Trotline, and the claim for the endorsements has been prosecuted principally by Mr Nolan on behalf of Trotline.

6 The applicants applied for the following endorsements:

• an Ocean Trap and Line Restricted Fishery Demersal Fish Trap endorsement,
• an Ocean Trap and Line Restricted Fishery Line Fishing (Eastern Zone) endorsement, and
• an Ocean Trap and Line Restricted Fishery Line Fishing (Western Zone) endorsement.

7 I refer to these as ‘Ocean Trapping’, ‘Eastern Zone’ and ‘Western Zone’ endorsements respectively.

8 The Minister advised the applicants that their applications had been refused, and they requested an internal review of that decision. The internal review was conducted by the Restricted Fisheries Review Panel.

Internal review

9 The Restricted Fisheries Review Panel recommended to the Minister that the applications for the endorsements be refused. By letter dated 1 August 2000 the applicants were advised of the Minister’s decision, in accordance with the Review Panel’s recommendation, to refuse the endorsements.

10 The applicants applied to the Administrative Decisions Tribunal for review of the decision to refuse the endorsements.

Reviewable decision

11 The reviewable decision for this Tribunal is the Minister’s decision, advised by letter dated 1 August 2000, to accept the review panel’s recommendation to refuse the endorsements.

Application to the Tribunal

12 In the course of the hearing counsel for the applicants conceded that the applicants are unable to meet the requirements for an Ocean Trapping endorsement. To that extent the application for review of the Minister’s decision was abandoned. The applicants maintained their application in relation to the Eastern Zones and Western Zone endorsements.

Applicable law

13 The holder of a commercial fishing licence may not take fish for sale in a restricted fishery unless authorised by an endorsement on their licence: s112(1) of the Fisheries Management Act 1994 (‘the FMA’). Eligibility for an endorsement is determined in accordance with the Fisheries Management (General) Regulation 1995 (‘the FMR’): s113(2) FMA.

14 The endorsements sought by the applicants are provided for in Part 8 Division 2C of the FMR. They are described in cl.191D:

191D Types of endorsement in restricted fishery
(1) The following classes of endorsement are available in the restricted fishery:
• Demersal fish trap endorsement. This endorsement authorises the holder to use a fish trap to take fish for sale from ocean waters.
• Line fishing (western zone) endorsement. This endorsement authorises the holder to use a line to take fish for sale from ocean waters that are less than 183 metres in depth. The endorsement does not authorise the holder to take school or gummy shark from waters that are south of a line drawn due east from the northern point of the entrance to Moruya River.
• Line fishing (eastern zone) endorsement. This endorsement authorises the holder to use a line to take fish for sale from ocean waters that are not less than 183 metres in depth. The endorsement does not authorise the holder to take school or gummy shark from waters that are south of a line drawn due east from the northern point of the entrance to Moruya River.

15 Eligibility for these endorsements is described in cl.191E:

191E Eligibility for endorsement
(1) Demersal fish trap endorsement . A person is eligible for a demersal fish trap endorsement if the Minister is satisfied that the person submitted to the Director at least 6 ocean waters catch returns in the years 1986 to 1990, and 4 ocean waters catch returns in the years 1991 to 1993, that indicate that fish were taken using a fish trap of a kind known as a bottom or demersal fish trap.
(2) Line fishing (western zone) endorsement . A person is eligible for a line fishing (western zone) endorsement if the Minister is satisfied that the person submitted to the Director at least 6 ocean waters catch returns in the years 1986 to 1990, and 4 ocean waters catch returns in the years 1991 to 1993, that indicate that fish were taken by the method of line fishing.
(3) Line fishing (eastern zone) endorsement . A person is eligible for a line fishing (eastern zone) endorsement if the Minister is satisfied that:
(a) the person owns a fishing boat and the fishing boat licence for the boat has an endorsement from the Director known as an ``OG1'' authorisation (relating to use of the boat in offshore waters), and
(b) the person submitted to the Director at least 4 ocean waters catch returns in the years 1986 to 1990, and 2 ocean waters catch returns in the years 1991 to 1993, each of which indicate that at least 2 of the following species of fish were taken by line methods:
blue-eye trevalla
hapuku
ling
bass groper
gemfish.
. . .
(8) If the Minister is satisfied that the catch history associated with a fishing business satisfies any of the eligibility criteria set out in this clause, the owner of the fishing business is taken to have satisfied that criteria, even if the owner did not personally take the fish for sale or submit any catch returns to the Director. In such a case, however, the person who actually took the fish for sale and submitted the returns (for example, while working as an employee of the fishing business) does not, by having done so, satisfy the criteria.
(9) In determining a person's eligibility for an endorsement, the Minister may have regard to the records kept by the Director (including licence records and records of fish taken by a commercial fisher).
(10) The catch history associated with a fishing business is to be determined in accordance with clause 135 (3).
(11) In this clause:
ocean waters catch return means a return under section 42 of the 1935 Act that relates to takings of fish in ocean waters.

16 Clause 191E(10) cross-refers to cl.135(3):

The catch history associated with a fishing business is the historical takings of fish for sale by or in connection with a fishing business. The catch history is to be determined by the Director in such manner as the Director considers appropriate, having regard to the records, kept by the Director, of fish taken for sale by any person involved in the business, or of fish taken for sale by use of a licensed fishing boat operated by the business, or to a combination of both. If a fishing business is sold by a person, the catch history associated with that business is transferable only in accordance with guidelines issued by the Director from time to time.

17 Clause 191E(11) cross-refers to s42 of the Fisheries and Oyster Farms Act 1935 (‘the 1935 Act’):

42 Returns
(1) The Minister may, from time to time, by notice published in the Gazette, require persons engaged in the operations referred to in subsection (2), to keep records as prescribed and to furnish returns in or to the effect of the prescribed form as to the catch, sales, output, gear used in connection with the operations, or business of such persons.
(1A) The notice may require that a return is to be furnished even if the operations in respect of which the return is required indicate a nil return.
(2) The operations in respect of which a return may be required under this section shall be:
(a), (b) (Repealed)
(c) the sale of fish at any market or at any establishment at which fish is sold which has not passed through a market,
(d) the preserving, curing, smoking, drying, or salting of fish,
(e) the canning or bottling of fish or of any fish product intended for human consumption,
(f) the preparation of fertilisers from fish or of any fish product or by-product not intended for human consumption,
(g) the carriage of fish or oysters by sea, land or air,
(h) any other operations relating to the fishing and oyster farming industries as may be prescribed.

18 Clause 191E FMR limits an assessment of an application for Eastern and Western Zone endorsements to consideration of fishing activity between 1986 and 1993 inclusive. Further, the clause requires an assessment to be based on, at least, consideration of ocean waters catch returns submitted by the applicant, and of the catch history associated with a fishing business owned by the applicant, although other records may be had regard to.

19 An applicant must be able to point to ocean waters catch returns, as defined, which they submitted in the period 1986 to 1993 inclusive. The combined effect of cl.191E(11) and s42 of the 1935 Act is that ocean waters catch returns are necessarily in the prescribed Form 19 and Form 49; I discussed the source and history of the prescribed forms in Greenaway-v- Director, Department of Fisheries [2000] NSWADT 158 at paras 27-37. In that case I was looking at the meaning of the term “estuary waters catch return” which is defined in cl.191N(14) FMR as “a return under s42 of the 1935 Act that relates to takings of fish in estuarine waters”. That is directly analogous to the situation in this matter, where the term “ocean waters catch return” is defined in cl.191E(11) FMR as “a return under section 42 of the 1935 Act that relates to takings of fish in ocean waters”. As well or in addition, an applicant can rely on a catch history associated with a fishing business, as that phrase is defined in cl.135(3).

20 Thus, in my view:

i. catches of fish outside the period 1986 to 1993 are irrelevant to eligibility
ii. catches of fish in the period 1986 to 1993 are irrelevant to eligibility if they are not indicated in either a Form 19 or a Form 49 as having been caught by the method of line fishing
iii. other records may be relevant to assessing eligibility but, in light of observations (i) and (ii), cannot be sufficient to establish eligibility
iv. the applicant for an endorsement must be the owner of the fishing business the catch history of which is relied on to establish eligibility
v. the fish must have been taken for sale by or in connection with a fishing business.

21 Holding a commercial fishing licence is a threshold requirement for an endorsement. Whether the applicants hold commercial fishing licences is in dispute. If they do not then their application for an endorsement must fail.

22 The Tribunal is not empowered to review a decision concerning the existence or not of a commercial fishing licence. By s126(1) FMA the Tribunal is empowered only to review decisions concerning:

(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.

23 The term “relevant authority” means, among other things, a commercial fishing licence.

24 While s126 does not give the Tribunal jurisdiction to review a decision as to whether a licence exists or not, the question of whether a licence exists is, in this matter, a question of fact to be decided as a necessary step towards deciding eligibility for endorsement. More than a mere question of fact, it is a fact on which the decision turns: if there is no current commercial fishing licence there can be no valid claim for an endorsement.

Application for a ‘licence’

25 In June and July of 1989 Mr Nolan made what he termed a ‘research and development’ proposal to the Minister. The proposal was to test a new fishing method called ‘trotlining’. It is, Mr Nolan says, a precise, humane, and environmentally responsible method. The proposal was that fish caught in what were then Commonwealth waters would be landed in NSW; Mr Nolan sought a licence from the Minister for this purpose.

26 In his letter to Mr Nolan of 21 September 1989 the Minister said:

Your proposal . . . can be considered developmental and I am prepared to grant licences for the landing of fish for up to two years . . .

27 This statement by the Minister is reflected in a letter by the Director of the Department of Fisheries (‘the Department’) of 15 November 1989 in which he said that Trotline had:

been given approval to licence two vessels to engage in exploratory and developmental line fishing . . .

28 As well as being referred to by the Minister as a licence “for the landing of fish”, and by the Department’s Director as a licence “to engage in exploratory and developmental line fishing”, the licence which was granted is referred to by the Department in its files variously as, at least, a “New South Wales landing licence”, a “land only licence”, a “land only State boat licence” an “experimental fishing licence”, a “developmental permit”, a “State boat land only licence” a “Special Development licence” and a “permit”.

29 To encompass the whole of the time that Trotline operated with this authorisation, and to give emphasis to what in my view was the clear nature of the authorisation, I refer to it as a ‘NSW land-only licence’.

30 The NSW land-only licences approved by the Minister were to be granted in relation to two boats then proposed by Trotline as the boats it would use. In fact only one licence was applied for and granted, in relation to the boat Prophesy; other boats for various reasons were unavailable or unsuitable.

31 When Trotline leased the Prophesy in November 1989 it had no licences. As a formality the NSW land-only licence, approved by the Minister in September 1989, was applied for on 27 November, and again on 5 December 1989, on the usual form for a commercial fishing boat licence. There are two signed applications on the Department’s file, one from each Trotline director. They differ in essential particulars as to the description of the boat Prophesy. They are consistent however in how they record the method of fishing to be used in NSW waters: one application states ‘Nil’ and the other ‘N.A’.

Purchase of a licence

32 Having applied for the NSW land-only licence for the Prophesy, Trotline still needed a Commonwealth licence to enable the Prophesy to actually take the fish which were to be landed in NSW. Departmental file notes of 23 November 1989 record options which were available to Trotline:

i. buy a Commonwealth licence and attach it to the NSW land-only licence
ii. buy a combined Commonwealth/State licence package and use it, letting the NSW land-only licence lapse
iii. buy a combined Commonwealth/State licence package and split it, using the Commonwealth licence with the NSW land-only licence and disposing of the NSW licence from the package.

33 On 4 December 1989 Trotline purchased the boat Stingray with a combined Commonwealth/State licence package, in force until April 1990. They needed and used the Commonwealth licence in the Stingray package. The Commonwealth allowed Trotline to replace the Stingray with the Prophesy as the boat for which the licence was held. This was advised by the Commonwealth to the Department on 12 December 1989, and the Commonwealth issued a fresh licence to Trotline in respect of the Prophesy on 13 December 1989, in force for 12 months.

34 With its application pending for a NSW land-only licence, and already approved by the Minister, Trotline had no need for the NSW licence from the Stingray package. But what became of that licence (‘the Stingray licence’)?

35 The question is important for two reasons. As I noted above, an applicant for an endorsement must be currently the holder of a NSW commercial fishing licence: the applicants rely on the Stingray licence. Further, Trotline, as owner of that fishing business, can rely on the catch history associated with the Stingray licence to establish eligibility for an endorsement.

36 The applicants say the Stingray licence was held in abeyance, to be used, sold or otherwise dealt with at some future time. The Minister says that it was surrendered at the time the licence package was split. What actually happened is unclear. The material before me supports three possible accounts, each a variant on options anticipated by the Department.

37 The first possible account is that the Department issued Trotline with the Stingray’s NSW licence, the NSW land-only licence or the application for it lapsed, as in the Department’s option (ii), and that when the Department transferred Stingray licence to the Prophesy the conditions on it were varied to make it, in effect, the land-only licence which the Minister had approved.

38 This account is supported by documents on the Department’s file which indicate that the Stingray was replaced by the Prophesy as the licensed boat on the Stingray licence, and that the licence which was in fact issued had conditions limiting it to a land-only licence. Further, there is no record of the land-only licence application having been acted on.

39 If this boat replacement on the licence was done at the initiative of the Department, it was a convenient way of meeting the application for a land-only licence, and would have ensured compliance with the Department’s policy against the splitting of licence packages. There is however no application on file from Trotline to replace the Stingray with the Prophecy on the licence, and Mr Nolan denies ever intending such a replacement. Further, the replacement would have been contrary to Departmental policy in NSW which prevented a licensed boat being replaced by a longer boat.

40 I note that the effect of replacing the Stingray with the Prophesy on the licence, and downgrading the licence to land-only, would have been to deprive Trotline of an asset: a NSW commercial fishing licence with associated catch history, for which it had paid some thousands of dollars.

41 The second possible account, which is argued for by the Department, is that the Department issued for the Prophesy the NSW land-only licence Trotline had applied for, and Trotline surrendered the Stingray licence. This is the Department’s option (iii), where ‘surrendering’ a licence is a form of ‘disposing’ of it.

42 This account is supported by documents on the Department’s file, particularly file notes which indicate that one of the then Trotline directors, Mr Bromley, attended the Department’s office and voluntarily surrendered the Stingray licence.

43 The Department and the Minister have consistently described what happened as a “surrender”, although whether the surrender was voluntary or required is unclear. The file notes imply that the surrender was voluntary – Mr Bromley seems simply to have attended the Department’s office and handed the licence over. The Department, in subsequent accounts to third parties has described it as a “required” surrender, for example in the Minister’s letter to the Premier of 15 August 1995, and the Department’s Manager of Shares and Licensing in a document of 8 April 1997 . However I can find no contemporaneous documents on file that indicate that a ‘required surrender’ was contemplated by the Department, or that such a requirement was conveyed to Trotline.

44 Whether the surrender of the Stingray licence was voluntary or required, there is no written advice from Trotline on file which advises of a surrendering. In cross-examination Mr Nolan said that he did not know of Mr Bromley’s having surrendered the licence, and he denies he ever intended such a surrender. In surrendering the Stingray licence Trotline would have been giving up its recently purchased NSW commercial fishing licence with associated catch history.

45 Surrendering the NSW licence from the Stingray package and using the Commonwealth licence would have been contrary to the policy against the splitting of licence packages. The Department did however record on 23 November 1989 that “perhaps it would be preferable to allow licence splitting rather than bringing another Commonwealth boat licence from interstate”.

46 The third possible account, which is argued for by the applicants, is that Trotline was issued the land-only licence for the Prophesy in response to the application, and that the Stingray licence was not surrendered but was held in abeyance. This is the Department’s option (iii), where ‘holding in abeyance’ is a form of ‘disposing’ of a licence.

47 This account is supported by documents on the Department’s file showing that the Department had anticipated in November 1989 that a NSW licence in Commonwealth/State package could be held in abeyance. But using the Commonwealth licence from the Stingray package and holding the NSW licence in abeyance would have been contrary to the policy against the splitting of licence packages although, as I commented above, the Department has said that licence splitting might be preferable in some circumstances.

48 In cross-examination Mr Nolan agreed that he was not asked to renew the Stingray licence when it was scheduled to expire in April 1990. Further, he agreed that he has not renewed it. The applicants say, however, that the licence was held in abeyance and was never cancelled by the Minister under the 1935 Act and the associated Regulations, which were then operative. They say that under the 1935 Act the licence continued to be current although not renewed, and was held in abeyance, not having been surrendered, until the commencement of the FMA, at which time the transitional provisions from the 1935 Act (s103(2)(b) FMA) operated to ensure that the licence survived.

What happened to the Stingray licence?

49 The applicants seek a review of a decision not to grant them endorsements on a commercial fishing licence. It is encumbent on them to show that they do in fact hold a commercial fishing licence. Whether they do is contested by the Department.

50 No Departmental officers were called to give evidence, and Mr Bromley’s whereabouts are unknown. I am unable on the material before me to decide, even only on balance, which of the accounts I set out above explains how the Stingray licence in the Stingray package was dealt with, or what became of it.

51 As an account of the relevant processes of the Department and its dealings with Mr Nolan, Mr Bromley and Trotline, the documents are ambiguous, inconsistent, incomplete and lacking in detail. The material supports at least three different accounts. Taking into consideration of all the available material, I am not satisfied that the applicants come to this Tribunal, seeking an endorsement, as holders of a commercial fishing licence.

52 I do not, however, make a finding that they do not hold a commercial fishing licence. The material could not support a finding on balance to that effect, and I note that the status of the Stingray licence is an issue which may have other consequences for Trotline and the Minister involving, as it seems to, a dispute over the existence or extinguishment of an intangible asset.

53 Even if they did hold a commercial fishing licence, the applicants fail in any event to establish eligibility for an endorsement, and as well fall foul of Government policy.

Eligibility for a Western and Eastern Zone endorsements

54 If the NSW licence in the Stingray package was in fact held in abeyance by the applicants, and did survive the transition to the FMA, the applicants can rely on it as the necessary commercial fishing licence for an endorsement, and can rely on the catch history associated with the Stingray and described in Exhibit 1.

55 For a Western Zone endorsement, the catch history associated with the Stingray would give the applicants only 5 of the necessary 6 catch returns in the period 1986-1990, and none of the necessary 4 from 1991-1993.

56 For an Eastern Zone endorsement, the catch history associated with the Stingray would give the applicants none of the necessary 4 catch returns in the period 1986-1990 showing at least two of the specified fish, and none of the necessary 2 from 1991-1993 showing at least two of the specified fish.

57 I note that in looking at eligibility for both Western and Eastern Zone endorsements there is as the nice question of whether the same catch histories can be used to establish eligibility for both endorsements: the applicants maintain that they can and the Department says not. As the available catch history does not establish eligibility for either endorsement I do not have to answer the question. I note however that the applicant’s interpretation, which is surprising in its result, appears to be open on wording of cl.191E, although I have not looked into the question in detail.

58 As the applicants are short of the necessary catch returns for eligibility when relying only on those of the Stingray, where do they find the balance? They contend that eligibility should be assessed by reference as well to fish caught by the Prophesy, the Shona B, and the Dolphin.

Fishing activity on other boats

59 The Prophesy’s licence was issued on 13 December 1990, valid for 12 months, and subject to this condition:

This licence will not authorise the vessel to take fish in NSW territorial waters for sale. The vessel is authorised to land fish for sale in NSW, with the exception of snapper, taken from waters other than NSW territorial waters.

60 Trotline operated the Prophesy between December 1989 and March 1990 during which time it took fish in what were then ‘Commonwealth waters’ – 3 miles or more off shore. It did so under a Commonwealth licence to take fish, and a NSW licence to land fish. Trotline did not operate the Prophecy after March 1990.

61 The Shona B was owned and operated by Brown Bros Marine Pty Ltd (‘Brown Bros’). Trotline agreed with Brown Bros that Brown Bros would use the trot-line fishing method in its fishing operations on the Shona B, and would keep log books and other records of the use of the method and the resulting catch. Trotline transferred the land-only licence to the Shona B.

62 The Shona B made only one fishing trip under this arrangement. In November 1990 it took fish once, in what were then Commonwealth waters, and sank on the same trip. Commonwealth records of the catch are available.

63 On 16 January 1991 waters which had been Commonwealth waters became NSW offshore waters. NSW boats which had held Commonwealth licences were given a general offshore fishing endorsement on their NSW licences.

64 After the loss of the Shona B, Brown Bros made the Dolphin available to Trotline under the same arrangement. The Dolphin was the only fishing activity with which Trotline was associated for the remainder of the period relevant to eligibility, ie to 31 December 1993.

65 While Trotline has subsequently sought a commercial fishing licence for the Ki Na B, and the Bass, neither of these boats operated in association with Trotline during the period relevant to eligibility. But for one point, an account of the licensing and fishing activities of those boats and of Trotline’s dealings with the boats and their owners is irrelevant to these proceedings. The one point is that it is necessary for an Eastern Zone endorsement that the applicant currently owns a fishing boat with an ‘OGI’ authorisation endorsed on its licence. If that was all that stood between the applicants and eligibility it would be necessary to decide the applicants’ claim that the OGI authorisation endorsed on the licence of the Bass satisfies this requirement. It is not all that stands between the applicants and eligibility, and I make no decision as to the OGI authorisation.

Does the fishing activity meet the eligibility criteria?

66 To satisfy the balance of the 1986-1990 part of the eligibility requirement for a Western Zone endorsement, the applicants need to show one ocean waters catch return they submitted from the Prophesy and Shona B; to satisfy the 1991-1993 part they need to show four ocean waters catch returns they submitted from the Dolphin.

67 Similarly, to satisfy the 1986-1990 part of the eligibility requirement for a Eastern Zone endorsement, the applicants need to show four ocean waters catch returns showing the required species which they submitted from the Prophesy and Shona B; to satisfy the 1991-1993 part they need to show two ocean waters catch returns showing the required species which they submitted from the Dolphin.

68 This they cannot do, because Trotline did not submit ocean waters catch returns from the Prophesy, the Shona B or the Dolphin. The term ‘ocean waters catch return’ means a document in the prescribed form under the Fisheries and Oyster Farms Act (NSW) 1935: Forms 19 and 49. Neither the Prophesy or the Dolphin fished in NSW waters at the relevant time; they were not licensed to do so. They completed necessary Commonwealth fishing records of their catch, and/or shot logs for purposes of Trotline’s research on the use of the trotlining method. These documents are not sufficient to establish eligibility in the absence of ocean waters catch returns in the necessary form, and in any event do not themselves establish that the eligibility requirements are met.

69 Not only did Trotline not submit ocean waters catch returns, it did not undertake the very activity which submitting the returns is intended to indicate, and which the eligibility requirements are intended to identify by referring to the returns as the basis for establishing eligibility. That activity was the taking of fish for sale in NSW waters, ie participating in a NSW fishery. Trotline was not participating in a NSW fishery between 1986 and 1993, it was researching a fishing method, and doing so in Commonwealth waters until at January 1991. Had it been participating it might have had some of its own effort to show towards eligibility; because it was not participating it has none.

70 The result is that the applicants are unable to establish eligibility.

Policy

71 The same finding as to the nature of Trotline’s fishing leads me to conclude that the applicants fall foul of the policy governing new entrants into NSW fisheries.

72 The Minister says that to grant the endorsements in this case, if eligibility were to be established, would be contrary to policy. This Tribunal is, by s64(1) of the Administrative Decisions Tribunal Act, bound to:

give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

73 Further, by s64(4), the Tribunal may:

have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

74 The NSW Fisheries Licensing Policy (Version 2) 1996 begins with a heading and text at page 2:

Warning
Licence holders who have little or no history of participation in a fishery may be excluded from that fishery unless they have acquired a fishing business which has sufficient catch history to meet the entry requirements for that fishery, or has the appropriate endorsements.

75 The first phrase, “Licence holders who have little or no history of participation in a fishery” is in my view a fair description of Trotline in this matter: in the period 1986-1993 – which is the period by reference to which a ‘history of participation’ is assessed – Trotline took no fish in a NSW fishery. The Policy warns licence holders who have no history of participation, such as Trotline, that to participate in a fishery they must acquire an existing business. That is, they must replace an existing participant and may not become an additional participant.

76 The Policy continues at page 6:

Objectives
. . .
3. Allow new entrants into the industry in a manner which ensures that real fishing effort is being replaced

77 It is clear policy that real fishing effort is to be replaced, not added to, by the arrival of a new participant. The effect for the applicants is that they must replace an existing participant; they may not become an additional participant.

78 The Policy continues at page 6:

Note
Any proposal regarded as contrary to the intentions of this policy will not be approved

79 It is the Minister’s contention that the applicants’ application for eligibility is a proposal which is contrary to the intentions of the policy. I agree.

80 The issue of the application of the policy arises only if the applicants can show that they currently hold the Stingray licence and its associated catch history; to that extent the applicants would not be adding to but would be replacing fishing effort.

81 But any further catch history which the applicants would need to rely on to establish eligibility would come from the Prophesy, the Shona B and the Dolphin. To this extent the applicants would be adding to the fishing effort, as none of those boats was participating in NSW fisheries. The grant of an endorsement, if eligibility was established, would add to the fishing effort, and so would be contrary to policy. Accordingly, the effect of the policy is that the endorsements, if the applicants were eligible for them, would not be granted.

Finding

82 Having regard to all the available material I am not satisfied that the applicants hold a commercial licence. Further, having regard to all the available material I am satisfied that, even if they do hold a commercial licence, the applicants do not meet the eligibility requirements for the endorsements they seek. Finally, I am satisfied that even if they do meet the eligibility requirements, Government policy prevents the granting of the endorsements.

Correct and preferable decision

83 In light of these findings the correct and preferable decision is that the Minister’s decision to accept the review panel’s recommendation be affirmed.

ORDERS

84 I make the following orders pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act:

1. The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicants are not eligible for an Ocean Trap and Line Restricted Fishery Line Fishing (Eastern Zone) endorsement, is affirmed.

2. The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicants are not eligible for an Ocean Trap and Line Restricted Fishery Line Fishing (Western Zone) endorsement, is affirmed.

3. Pursuant to s88 of the Administrative Decisions Tribunal Act I make no award of costs.