Walton and Australian Fisheries Management Authority
[2002] AATA 184
•20 March 2002
DECISION AND REASONS FOR DECISION [2002] AATA 184
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V01/446
GENERAL ADMINISTRATIVE DIVISION ) V01/447
Re GARY WALTON AND MARY KAYE WALTON
Applicants
And AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member, Mr P Lindsay, Senior Member Mr C Ermert, Member
Date20 March 2002
PlaceMelbourne
Decision 1. The Tribunal sets aside the reviewable decision. 2. The Tribunal remits the matter to the Australian Fisheries Management Authority for reconsideration in accordance with the direction that Mr Walton's ITQ in the Southern Shark Fishery for the year 2000, for all purposes including the allocation of quotas in subsequent years, be 20,000 kilograms divided between school shark and gummy shark in the same proportion as the quota in the relevant decision (T47 p408). 3. Liberty is reserved to the parties to apply for clarification in case there is difficulty implementing this decision.
(sgd) Joan Dwyer
Senior Member
FISHERIES – Southern Shark Fishery – quota attached to fishing permit – reflection of inequities due to past history of endorsement as a Category B fisherman and failure by review panel to consider circumstances on a case-by-case basis – changes in legislative scheme – whether special or exceptional circumstances such that it is appropriate to make a new decision – weight to be given to fact that any increase in quota will have to be absorbed by fishery or else total allowable catch will be increased – evidence that no longer any biological concern as to main species – decision set aside – new decision made increasing quotas
Fisheries Management Act 1991 s 165(5)
Re Brown and Ors and Secretary, Department of Fisheries and Energy (1989)
18 ALD 543
Re Walton and Minister for Primary Industries and Energy [1990] AAT 284, 10 December 1990)
Re Evans and Secretary, Department of Primary Industry (1985) 8 ALD 827
Green v Daniels (1977) 13 ALR 1
Beadle v Director-General of Social Security (1985) 60 ALR 225; 7 ALD 670
Re Ivovic and Director General of Social Services (1981) 3 ALN N95
Re Beadle and Director General of Social Security (1984) 6 ALD 1
Re Aston and Department of Primary Industry (1985) 4 AAR 65
Trimboli v Secretary, Department of Social Security (1989) 86 ALR 64; 17 ALD 201
Re Bolding and Australian Fisheries Management Authority [1999] AATA 494
Re Evans and Secretary to the Department of Primary Industry
(AAT 2472, 18 December 1985)
REASONS FOR DECISION
20 March 2002 Mrs Joan Dwyer, Senior Member, Mr P Lindsay, Senior Member Mr C Ermert, Member
This is an application for the review of a reviewable decision (T2) made on 15 March 2001 by a delegate of the respondent ("AFMA") under s 165(5) of the Fisheries Management Act 1991 ("the Act"). That decision reconsidered a "relevant decision" (T47) made on 21 December 2000 under s 32 of the Act. The relevant decision advised Mr Walton of his Quota Allocation for the year 2001 as a permit holder in the Southern Shark Fishery ("SSF"). Although the delegate used the terminology of "affirming" the decision under review, s 165(5) of the Act does not give power to affirm as one of the options on review of a relevant decision. Section 165(5) states:
(5) AFMA must, within 45 days after receiving the request, reconsider the relevant decision and 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.
Thus, the decision under review is to be characterised as a decision in substitution for, and in the same terms as, the relevant decision of 21 December 2000.
Mr Walton appeared in person. He and his wife gave evidence. Mr Parkin, a solicitor employed by the Australian Fisheries Management Authority ("AFMA"), appeared for the respondent. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered by the applicant during the hearing.
Mr Walton's case is that there are exceptional or special circumstances which make the quota allotted to him unfair, unjust or inappropriate. He has been endeavouring to have those circumstances recognised since 1987 when management restrictions began in the SSF, in an endeavour to conserve the resource and maintain a viable fishing industry.
A formal management system for the SSF, which was authorised under the Fisheries Act 1952, had been in operation from 1988. It lapsed when the Act came into operation in February 1992. Since that time access to the fishery has been by way of fishing permits under s 32 of the Act and the fishery has been managed by conditions placed on the permits. After some years it was considered that this approach had not resulted in sufficient reduction in fishing effort to preserve the resource. Accordingly, in early 1999, AFMA appointed an Allocation Advisory Panel ("AAP") to provide advice on the apportionment and allocation of school and gummy shark quotas. The AAP had before it advice from the AFMA Board and the Southern Shark Fishery Management Advisory Committee as to the reduction in annual catch required "to ensure an 80% probability that in the year 2011 the mature biomass of the species will exceed the biomass in the year the 1996" (T19 p194).
The delegate, in the reviewable decision, referred to the recommendations of the AAP as follows (T docs p4):
After consulting widely with shark fishers, including a series of port visits, the AAP recommended that the allocation of school and gummy shark quota in the fishery be proportional to each concession holder's best three years of verified catch history in the four year period from 1994 – 1997.
The delegate did not change the quotas which had been allocated to Mr Walton in the relevant decision made 21 December 2000 in accordance with the formula recommended by the AAP.
It is clear from the AAP report and recommendation, that the formula recommended by the AAP was not designed to take into account exceptional circumstances. The AAP intended that they be dealt with through the internal review process. However, the delegate on internal review concluded that there were no cogent reasons or special circumstances that would cause her to depart from the policy as to quotas generally applied in the SSF. The delegate gave weight to the fact that Mr Walton's "B5" licence endorsement, which was at the root of his trouble "was reviewed by the AAT and the decision was found to be corrected [sic] and therefore affirmed".
It is not clear to which of the AAT decisions concerning Mr Walton the delegate was referring. If she was referring to the AAT ruling of 23 March 1989, in Re Brown and Ors and Secretary, Department of Fisheries and Energy (1989) 18 ALD 543 (T30 p269), where Mr Walton was one of the applicants, she overlooked the fact that the Tribunal, in that decision, stated that it was obliged to apply the law then in force and to make its decision by applying strictly the criteria contained in Schedule 1A to Management Plan No. 18 as amended by Management Plan 20.As the Management Plan did not recognise any special circumstance exceptions, the Tribunal could not address the issue of whether or not Mr Walton had been able to show special circumstances.
In the substantive AAT decision delivered on 10 December 1990, Re Walton and Minister for Primary Industries and Energy [1990] AAT 284, 10 December 1990) the Tribunal again held that it had no power to make a favourable decision on the basis of special circumstances, but it made it very clear that if it had had that power it would have used it to Mr Walton's advantage. The Tribunal at paragraph 15 of its reasons said:
15. However, we note that, if the criteria set by Schedule 1A of the management plan had been less rigid and left scope for application of the principles applied by the Tribunal in respect of other fisheries in cases such as Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366, exercise of the resulting discretion in favour of the applicant, who but for injury and mishaps to his boat and nets would have met criterion (d), would undoubtedly have been justified. To the extent that the management plan did not allow any such discretion, the applicant's sense of grievance has a reasonable basis. It is suggested, therefore, that when the next stage of development of control of the fishery is planned, the provisions of the management plan determined to implement that plan should include in one category persons who are genuinely engaged full-time in operating a boat in the fishery and whose catches are 15 tonnes or more but less than, say, 20 tonnes a year and should be expressed in terms sufficiently flexible to enable persons to be included in that category if they would be included in it but for failing to meet the catch requirement because of temporary incapacity or mishap. (emphasis added)
In view of the Tribunal's statement in the 1990 decision, that if there had been a special circumstances discretion, the exercise of that discretion in favour of Mr Walton "who but for injury and mishaps to his boat and nets" would have met criterion (d) "would undoubtedly have been justified", we are at a loss to understand how the delegate in the decision under review, could have derived any support from that decision for her conclusion that Mr Walton had not shown exceptional circumstances.
The delegate, in the decision under review did not consider whether exceptional circumstances arose from the sort of circumstances referred to by the Tribunal in Re Evans and Secretary, Department of Primary Industry (1985) 8 ALD 827 where the Tribunal said at paragraph 13:
Thus a fisherman who otherwise met the criteria, but failed to fish in the relevant period may be granted the endorsement sought, if the only reason for his failure to fish in the qualifying period was illness, vessel breakdown or other special cause.
Section 32 of the Act, so far as relevant, provides:
Grant of fishing permits
32. (1) AFMA may, upon application made in the approved form, grant to a person a fishing permit authorising, subject to subsections (1A), (1B) and (1C), the use by that person, or by a person acting on that person's behalf, of an Australian boat for fishing in a specified area of the AFZ or a specified fishery.
. . .
(5) A fishing permit is granted subject to the following conditions:
(a) if the fishing permit authorises fishing in a specified managed fishery - the holder of the permit must comply with any obligations imposed by, or imposed by AFMA under, the relevant plan of management on the holder of such a fishing permit;
(b) if the fishing permit authorises fishing in a specified managed fishery - the permit will cease to have effect if the plan of management for the fishery is revoked under subsection 20 (3);
(c) the fishing permit may, under subsection 75 (7), cease to have effect or, under subsection 79 (3), cease to apply to a fishery;
(d) the fishing permit may be cancelled under section 39;
(e) no compensation is payable because the fishing permit is cancelled, ceases to have effect or ceases to apply to a fishery.(6) A fishing permit:
(a) is subject to such other conditions as are:
(i) specified in the permit; or
(ii) prescribed in relation to permits granted under this section;
and
(b) comes into force on the day specified for the purpose in the permit or, if no day is so specified, on the day on which it is granted; and
(c) subject to this Act, remains in force until the day specified for the purpose in the permit, being a day not later than 5 years after the day on which it came into force.(7) Without limiting the operation of paragraph (6) (a), the conditions that may be specified in a permit include conditions relating to:
(a) the fish that may be taken; or
(b) the quantity of fish that may be taken; or
(c) the rate at which fish may be taken; or
(d) the methods or equipment that may be used to take fish; or
(e) the methods or equipment that may be used to process or carry fish.
. . .The Tribunal asked Mr Parkin, at the commencement of the hearing, whether it was conceded that the Tribunal had power to vary the quotas granted to Mr Walton if it should find that to be appropriate, because of the special or exceptional circumstances of the matter. He replied (trans. p4):
AFMA acknowledges that the Tribunal can exercise those powers. There is no Management Plan in force at the moment. So we are not suggesting that there is a legal constraint that prevents the Tribunal doing what Mr Walton is asking. We are suggesting, and we can canvass this later, that in the interest of consistency, and a line of authority that I am sure you are familiar with, it would be appropriate to follow the policy that AFMA has adopted. But we don't put it any higher than policy.
Mr Walton claims that the quotas imposed on him, as a condition of his current fishing permit, are so low that they do not allow him to earn his living as a fisherman. Mr Parkin explained in opening (trans. p5):
The basis, as I understand it, of Mr Walton's claim, which is of course to quota, and quota is imposed as a condition of a fishing permit. And it was imposed – well, the restriction that you cannot catch more than the allocated quota was imposed and the quota was allocated as part of that process, based on the catch history taken between 1994 and 1997. Now, the condition that Mr Walton had on the permit at that time, that restricted him to the five nets, goes back to a decision that was made in the late '80s, when the regime, which Deputy President Thompson canvasses, was in force and that was all under the previous legislation in the Fisheries Act 1952.
The current Act came into operation in February 1992.Mr Parkin's reference to "the regime, which Deputy President Thompson canvasses" is a reference to the ruling made in respect of the entitlements of a number of applicants including Mr Walton on 23 March 1989 in Re Brown (see paragraph 7 of these reasons). They all sought review of Category B licence endorsements. Category A licensees could use six nets but Category B shark fishermen were restricted to using five nets. They were also not permitted to sell or transfer their licences. Subsequent net restrictions introduced in 1991 operated much more significantly on Category B than on Category A fishermen.
As Mr Parkin explained, at the time the Tribunal, presided over by Deputy President Thompson, looked at the entitlements of Mr Walton and the other applicants in that matter, the Fisheries Act 1952 required decision-makers to apply strictly the criteria of a Management Plan for the SSF that was then in force. But Mr Parkin acknowledged (trans. p5):
There is no counterpart Management Plan, no Management Plan at all, under the current legislation.
Mr Walton's submission was that, where there is no management plan in operation, and the AFMA is applying policy, there is a discretion in special or exceptional circumstances for a decision to be made which is more favourable to a fisherman than one strictly in compliance with the policy. Mr Parkin did not disagree with that analysis. The only issues are whether Mr Walton's circumstances are sufficiently special or exceptional for that to be an appropriate course to adopt in this matter, and if so, what decision as to quota should be made in substitution for the relevant decision.
are mr walton's circumstances sufficiently special or exceptional to call for the exercise of a discretion in his favour?The special circumstances relied on by Mr Walton fall broadly into four categories. First, there are the circumstances of his personal and lifelong commitment to fishing which he says adequately demonstrated his commitment to the SSF in 1987 when SSF fishermen were first granted Category A or Category B endorsements, in spite of the fact that in the years ended September 1986 and 1987 he did not catch over 15 tonnes of shark. Second, there are the unfortunate circumstances which prevented Mr Walton catching over 15 tonnes of shark in the year ended September 1986, and therefore meant that he did not obtain a Category A endorsement in the SSF. Mr Walton suffered ongoing bad luck and made some unfortunate decisions made before the 1988 criteria were published. Those matters impacted on his catch in the year ended September 1987. Thirdly, there are the effects of his loss of livelihood on Mr Walton's health. Fourthly, there is the way in which the administrative review processes seem to have operated, at every step along the way, in a manner which for one reason or another was unfair to Mr Walton, and meant that he could not obtain the resolution of his problems which he has been seeking since late 1987.
mr walton's personal and lifelong commitment to fishing
Mr Walton first entered the SSF, as the owner of his own shark fishing vessel, the "Mary Kaye" in August 1984. When fishermen in the SSF were first endorsed as either Category A or Category B, the advice to fishermen was that a fisherman who entered the fishery before September 1984 by purchasing a boat would have to demonstrate "that the subsequent primary use of the boat was in the fishery." As to his demonstrated commitment to fishing Mr Walton told the Tribunal (trans. p11):
I am just a person of the sea. Fishing is my life. I was fishing in nappies with my father.
The Tribunal invited Mr Walton to explain those comments. He said he was brought up in Rhyll on Phillip Island and that his family have been fishing there non-stop since 1860. He said (trans. p11):
We were the first fishing family in Rhyll, and possibly all of Phillip Island. I can go back six generations of non-stop carrying on father to son fishing. In the one town, in the one bay.
He added (trans. p12-13):
I fished with my father. Dad spent 53 years fishing in the boat that his father built. And that boat is - we have still got that boat.
My dad, he is like a fish out of water. He has got salt water in his veins. And it is – I fished with him. Instead of going to school, I fished. And there was notes sent home to Mum. "Where is your son? Why isn't he at school?" "He is in the boat, fishing." This is when I was 13, 14. 16 – at just on 16 years of age I joined the RAN, for seven years. And I came out of there in July '76.
MRS DWYER: Why did you do that rather than go on fishing with your father?
MR WALTON: Well, Mum didn't want any of us to fish. Fishing is such a hard industry, especially the bay fishing that . . . – Dad participates in, is such an extremely hard industry, with not much return. And Mum just didn't want any of us to fish. Not that that was a determining factor that I didn't fish at the time, but Dad could see – and this is in the late '60s, 1969. He could see a change coming with the increase of the tourist population, and more and more runabout boats and things. And he also, he suggested I join the police force. I said "No, I am going into the Navy". So I went in the Navy at '69 and came out in '76.
When I came home on leave, much to Mum's consternation, I got a fortnight's leave at Christmas. I would come home from Sydney, off the ship. I would jump on a cray boat and go to King Island, for a week's craying. And, you know, Mum said "You come home on leave for a fortnight and you are back - and you are on a fishing boat. I haven't seen you for 12 months." And that was it. That was my life. And then when I came out of the Navy, I did about 18 months, fooling around up in Queensland and whatever. And then - - -
MRS DWYER: When you say "fooling around", were you fishing or - - -
MR WALTON: No, I did a bit of droving and a bit of mustering. A bit of scratching for gems and things, but just a bit of a change from the sea for about 18 months.
MRS DWYER: Right.
MR WALTON: Then I came back in October '77 and went shark fishing. As a deckhand. I did that for seven years. Until I could gain enough knowledge of the shark fishing industry. I looked, during that seven year period, I looked at various boats to buy. I didn't want to be a deckhand. No way. I wanted my own boat, be my own skipper, and doing my own thing.
As to his demonstrated commitment to the SSF, Mr Walton said that in July 1984 he found a 39 foot vessel that suited his means and aspirations and bought that boat. He converted it so that it was fit for shark fishing and he became an operational shark fisherman in his own right in approximately mid-August 1984. Originally he took one crew member when he went out, and usually they would be away in Bass Strait for about a week. Sometimes they would go to Flinders Island, 24 hours away, and work out of there for two or three weeks and fly some of the fish home. He said they would also bring home a load of fish at the end of the two, three or four week period away.
Mr Walton said that his aspiration was to get a larger vessel. He explained, the first boat he ever went on in October 1977, after discharge from the Navy, was a 60 foot boat "a beautiful great thing". He said it was his aspiration to get a good vessel and make a living shark fishing, but he had bought a smaller vessel as a step towards that aspiration. Its purchase meant that he and his wife had a $90,000 mortgage on their home and he did not want more commitment than that at the time. Mr Walton said that you could ask any fisherman how hard, and how consistently he worked. He said his first year was successful, he caught 16 tonnes of shark.
After that year problems arose due to injury and damage to his boat and due to the fact that, not knowing the future impact of not maintaining a high catch rate in respect of his own vessel, he made decisions which meant that at times his fishing effort was not confined to his own boat, and therefore did not count as catch, when that became the relevant factor for endorsement as either an A6 or a B5 fisherman. His endorsement as a B5 fisherman in late 1987 had ongoing effects which eventually affected his health and forced him to sell his own boat and give up earning his livelihood as a shark fisherman.
Mr Walton's commitment to life as a shark fisherman is shown by the fact that when he realised that net reductions which came into operation in early 1991 meant that he could no longer earn a livelihood as he had been doing, he attempted to change his pattern of fishing so as to "stay afloat". He, his wife and son, moved to live on Flinders Island to see if it was easier to make a living there. They tried that from 1992-95 but it still did not enable him to earn a livelihood. He explained (trans. p 29):
Well, it was too hard steaming back and forwards with the boat. It is a long way. It is 24 hours non-stop steaming through all types of Bass Strait weather and it was just getting too much. So with the air service they had there at the time, which was pretty good, we decided to shift to Flinders Island, fish that area and even though that put a fair dent in the income, was to fly the shark back to Victoria on the planes, as opposed to trying to get it home on the boat.
Well, the result of the net reduction, and not just the 1990 40 per cent cut – but the initial net reduction, and being placed in category B, was catastrophic. You just could not earn enough money to get yourself a better vessel to make the travelling around Bass Strait better and to employ more deckhands. When I left Flinders Island about October '95, just prior to leaving, I rang up all the fishermen's co-operatives and the ports in Tasmania, South Australia and Victoria. And in all that coastline there is only three operators who are full time B5, 100 per cent shark fishing with a B5 boat.Mrs Walton also gave evidence as to that period in their lives (trans. p66):
Yes, that was to assist with the fishing and be closer to the grounds and to keep the family unit together and, as my husband said, my son has salt water in his veins and I am a bit the same myself, and yes, it was just to try and help us because of this net reduction and the crisis we were going through, we thought if we were closer to the fishing grounds it would financially help all of us and relieve a little bit of the stress.
. . .
. . . we were renting an old house that was close to the wharf so I did some bookwork for a builder and worked for the abalone factory and opened the little house into a museum and made it into a shop so I was virtually working seven days a week, you know, it was just to keep up the income and just to keep my abilities up to scratch.
But when I was coming back to Victoria my husband was getting sicker and sicker and we had to stop fishing and trying down there, so we decided to come back for the doctor's and to find out what was wrong with him with headaches, stress, pains that we couldn't - we didn't know what was causing them, and that is why we came back.Mr Walton's commitment to life as a full-time shark fisherman was confirmed by Mr Reith MP (T38 p333) on 8 February 1988, and by Cr Lynn Mason of Furneaux Agriculture (A1, 25 January 1988) and by fishermen Graeme Wagland, Ron Fox and David Johnson (All in A1).
the unfortunate circumstances which prevented mr walton catching over 15 tonnes of shark in the years ended september 1986 and 1987
Mr Walton said that in his second year he was well on his way to achieving a good catch again when two accidents befell him. First, he injured his hand while using a circular saw to saw firewood at home. He could not fish from Anzac Day 1986, when he cut his hand, until his brother came out with him on one trip, to do the heavy work, to bring some money in. That trip finished on 26 May 1986 (see certificate of Dr Dixon in A1). The boat was tied up at Port Welshpool and Mr Walton drove home.
Because his hand was still not healed, Mr Walton could not yet take his boat out on his own and his brother had other commitments. He was still at home on 30 May 1986. That day he received advice from a friend, who had passed through Port Welshpool, that the engine room of his vessel was full of water. It seemed that his boat had been interfered with. Somebody had damaged the switch in his ice room. He suggested that it may have happened because there was animosity between ports, and he was a San Remo fisherman who had fished out of Port Welshpool and left his boat tied up at Port Welshpool. The engine was taken out of the vessel on about 5 June 1986 (see advice from John Buist and Co. Insurance Assessors, 29 June 1988 in A1). Mr Walton said that due to his hand injury and the boat repairs, he did not get his boat back in the water from Anzac Day until August 1986, except for the one trip he did with his brother.
After the trouble with his vessel, the engine was damaged and had to be totally overhauled. Once the engine was replaced, Mr Walton and a deckhand went off fishing. They did just one very short trip, to make sure everything was working. It appeared to be in order and so he loaded ice and set off for a week to try and catch up on the time he had lost, due to the injury to his hand and the overhaul of the engine. He encountered a lot of trouble with white pointer sharks chewing his nets. He said it does not happen very often, but sometimes a gummy shark becomes entangled in the nets, and that attracts a white pointer shark to feed on the dead gummy shark and, "he will just chew the nets clean in half" (trans. p17).
Mr Walton explained that when the nets are chewed, it is described as "a bite through". On his first trip after the engine had been overhauled, he had "13 of those bite throughs in five shots" (trans. p27). A "shot" is when a fisherman puts his nets in the water. Then the weather conditions were deteriorating down off Deal Island. Also, the engine started overheating, and when Mr Walton went below to see what was wrong, he saw that the new water pump seal was leaking, and he was losing fresh water out of the engine. That seal had been fitted by the mechanics, when the engine was out of the boat, approximately a month earlier.
Then the engine started running erratically. I went and investigated that. The keyway in the driveshaft for the injector pump had, in layman's terms, slobbed out. Which means the keyway had shifted sideways which in turn changes the injector timing to the engine and it –[the] engine was running terribly (trans. p17).
With the engine running erratically, and with the weather conditions deteriorating, Mr Walton was obliged to return to Port Welshpool. Four and a half of his six nets had been chewed up.
Mr Walton said it was not true, as alleged by AFMA in its Statement of Facts and Contentions, that he could not afford to repair the vessel. He explained that it does not cost very much at all to replace an oil seal or a keyway. But, he said he could not afford to replace the four and a half nets, after so much down time that season. He said it would have been about $9,000 to replace the nets and about $100.00 for the boat repairs. He did not have the $9,000 and he did not want to borrow it. He knew that he would have been able to borrow from a wholesale fish merchant, whose name he mentioned, but he said he did not want to incur that debt. When he stopped fishing that season he had caught 11.84 tonnes, which was very good, considering that he had not fished for about three months in the peak season. He did not at that stage know that there was going to be a 15 tonnes target figure decided upon for eligibility for a Category A endorsement.
In 1986 it could not have been known that an amended Management Plan to be introduced on 19 September 1988 would provide that a Category A endorsement would only be granted to fishermen who had just entered the SSF in 1984 if they had an average 15 tonnes catch for the two years ending September 1985 and 1986. Mr Parkin explained that it was a policy decision not to announce such criteria in advance, so that people could not "get the quota up", in order to qualify for the fishery. That is an understandable policy, but the reverse side is that even people who were genuinely in and committed to the fishery did not realise the significance of failing to get a good catch in 1986. Although Mr Walton had chosen not to borrow the $9000 in 1986, he explained that, had he known that if he did not reach a 15 tonnes target that year it would affect his future and his life so much, "I would have done anything to catch those 15 tonne. I could've borrowed that money" (trans. p19). The problem of fishermen like Mr Walton could have been adequately corrected with the exercise of a discretion in a special or exceptional circumstance. As will be explained later in these reasons, Mr Walton has never been given the benefit of such a discretion.
When Mr Walton decided not to borrow the money to replace his nets during the 1986 season, he went fishing with his father for garfish in the Bay. He finished with his father in about January 1987 and spent the money he had earned buying one more net. With that one, and the one and a half nets which were left after the nets had been chewed in September 1986, he went back sharking. Even with just two and a half nets he did very well. He caught 2.875 tonnes in about three weeks before March 1987.
In March 1987, a friend of Mr Walton's, Mr Wagland, who owned a large shark fishing vessel the "Yindala" had an accident and broke his leg. Before he purchased his own vessel, Mr Walton had been a deckhand for Mr Wagland on the "Yindala" for three years. After the accident Mr Wagland asked him if he would take the Yindala to sea as skipper, while Mr Wagland was incapacitated. Mr Walton and his wife thought about it and decided to help Mr Wagland out by taking his vessel to sea, even though that meant tying up the "Mary Kaye". Once again Mr Walton of course did not know, at that time, the significance of that decision. It meant that his own catch was low for the year following the relevant two years, ending in September 1985 and 1986. Had Mr Walton had a high catch that year it might have persuaded a decision-maker at an early stage to grant him a Category A endorsement the following year.
Mr Walton caught 14.8 tonnes as skipper of Mr Wagland's vessel from March until August 1987. By August Mr Wagland's leg had mended, he took his vessel back, and Mr Walton went back to the "Mary Kaye". In the short period from August to 24 September 1987, Mr Walton had the two worst weather months of the year for shark fishing. His catch figures were poor.
Over the following three years ending September 1988, 1989 and 1990 Mr Walton caught a total of 51 tonnes of shark, an average of 17 tonnes a year. Although he was endorsed as a B5 fisherman, which meant he could only use 5 nets, he caught more than the average catch of an A6 fisherman. He produced (A2) a graph (attached as Appendix 1 to these reasons) showing his catch over the years 1984-1994 in comparison to the average catch of A6 and other B5 fishermen. In each of the three years ended September 1988, 89 and 90, Mr Walton caught enough tonnage to qualify for a Category A endorsement if the criteria which came into effect in September 1988 had applied to those years. The graph was explained by Mr Walton at transcript, page 24.
Mr Walton explained that his catches for the three years 1987-1988, 1988-1989 and 1989-1990 were equal to, and in some cases higher than the average catch of A6 fishermen even though they were fishing with bigger vessels and more nets. His catch reduced significantly in the 1990-91 year because AFMA reduced the net entitlements of all sectors of fishermen that year. Mr Walton pointed out that the five net entitlement of a B5 fisherman was reduced by 40% to three nets, whereas the A6 and A10 fishermen (who had 6 or 10 nets) were only reduced by 33% and 30% respectively. Thus, those with the least capacity to cope with a net reduction suffered the greatest reduction.
The net reductions came in early in 1991, before the best time of the year for fishing, which is Autumn and early Winter. The reduction to three nets interfered significantly with Mr Walton's catch as shown on the graph of his catch history. Mr Walton tried to "hang on" for the years ending 1992, 1993 and 1994, but he really could not catch enough to make it viable. He said he was working harder, because he had to work on his own as after the 1991 net reduction the boat was not bringing in enough money to employ a deckhand. Working alone is very dangerous and terribly hard on a shark boat, so he thought he would try some other fishing. Using a Tasmanian fishing licence he was able to go scale fishing, but he found that it was no better than trying to survive on three shark nets.
Mr Walton said that had he achieved an A6 licence originally, then that would have been a sufficient springboard for him to have achieved an A10 status by amalgamation. He tendered as exhibit A8 an extract from a Memorandum of Advice by Counsel for the AFMA and an extract from a Fishery publication supporting his belief that the rationale behind the B5 category was to eliminate or cause the retirement of those fishermen. The B5 category was created for part-time and multi endorsed operators and he was neither of those. He was a full time fisherman solely endorsed for sharking and 100% reliant on that income. In that situation you could hardly survive on five nets, and certainly not on three nets.
Mr Walton pointed out at transcript pages 43-44 that it was recognised that the reduction in nets impacted most heavily on the operators with five or less nets. He quoted a passage from the Fisheries Survey Report 1993 (A5), to this effect:
For the fishery as a whole, shark catches remained fairly constant between 1990-91 and 1991-92, falling by less than 3 per cent. However, trends in catches across the fishery varied. Average shark catches of operators with 10 units of net remained fairly constant between 1990-91 and 1991-92. Operators with 6 units increased catches of shark by around 6 per cent, on average, between the two years. However, average shark catches of the operators with 5 or less units fell by around 30 per cent between 1990-91 and 1991-92.
This fall in catch for the operators with 5 or less units of net can be partly attributed to the net restrictions. With only 2 kilometres of net or less, shark fishing was only undertaken at times when catch rates were expected to be high. As a result, the net reductions resulted in less effort by these fishermen and consequent lower catches.
Operators with 10 units and operators with 6 units have also reduced their effort applied to the fishery. However, the extra units of net possessed by these groups may have meant that these groups were better able to respond to the net reductions and maintain their catch levels than the operators with 5 or less units of net.
. . .
On average, therefore, operators with 5 or less units of net are more dependent on other fisheries (in particular the rock lobster fishery) to maintain their incomes than the other two groups. However, for operators without endorsements in other fisheries, it is likely that those operators with 5 or less units will be most affected by changes in conditions in the shark fishery. (emphasis added)Mr Walton's graph (A2) shows that the whole of the B5 industry took "a big nosedive" (trans. p28) after the reduction in nets. The graph shows that he was still able to maintain catches well above the B5 average, but unfortunately, no longer at a level that allowed him to continue to be a viable fisherman.
the effect on mr walton's health of the difficulty in maintaining his livelihood as a shark fisherman
Mr Walton's submission (A1) contained a number of medical reports documenting the effect on his health of the difficulty he had in maintaining his livelihood as a shark fisherman. On 7 November 1997 his local doctor, Dr Struk wrote as follows (A1):
Mr Garry Walton has been a patient of mine for three years. During this time, and prior to 1995, Garry developed multiple medical problems which proved to be clearly related to severe stress created by his "uncertain" job situation with the fishing industry – AFMA.
Over the last few years Mr Walton was assessed by a number of specialists trying to find out the cause of his complaints which included constant headaches, severe lower abdominal pains, inability to concentrate, insomnia etc.
He was referred for a different investigation (including CT scans – brain plus all gastro intestinal tract investigations). All proved to be negative.
When the problems related to his previous job as a fisherman are re-presented, his symptoms always deteriorate.
Recently Garry developed symptoms of depression and panic attacks.
It is clear to me that the loss of his job/stability and ongoing uncertainty regarding Garry's family future contributed – if not triggered off – Garry's medical problems.The submission also contains a report of 19 April 1999 from Mr Redman, a psychologist to whom Mr Walton had been referred by the Vietnam Veterans' Counselling Service in respect of a number of symptoms. He reported that counselling was provided to ascertain Mr Walton's predicament and assist him with clarifying issues (page 2 of report). The counsellor identified Mr Walton as still wishing "to restore his dignity in the fishing industry" and listed as one of the aims of counselling (page 3 of report):
(v) To assist with promoting assertiveness, so that he will be able to feel stronger in standing up for his rights in the continuation of his struggle to obtain justice in the fishing industry.
An Austin and Repatriation Medical Centre Neuropsychology Assessment report of Ms Jones, of 3 November 1999 stated:
Garry Walton is a 46 year old man seen for neuropsychological evaluation on the 3.11.99 in light of ongoing semantic and anxiety symptoms for which he has sought counselling. The medical history was largely unremarkable until Mr Walton experienced significant work related stress in 1994, following which he reports having multiple medical investigations that were unremarkable. Mr Walton was eventually diagnosed with irritable bowel syndrome.
. . .
Ms Jones concluded:
Mr Walton presents as a man of at least high average (with further educational opportunities may have been closer to superior) intellectual and memory abilities and as such probably finds little (apart from passion about the sea and fishing) in common with his colleagues. The personality style (Mr Walton describes himself as a stickler for justice and morality) combined with above average ability may explain Mr Walton's championing of the cause on behalf of small fisherman, and the associated difficulties moving on personally from the experience.
Mr Walton was provided with feedback about his above average abilities and time was spent briefly discussing the potential he has to apply his many skills to other areas within the industry. Emphases in our discussion was placed on the need for Mr Walton to address his personal needs in addition to the political, and he was encouraged to explore career options that meet his needs for higher level stimulation. It is felt that applying his strengths (personality and intellectual) to a new cause may assist his adjustment.
We find that Mr Walton has not been able to "move on personally from the experience" of losing his livelihood as a fisherman.
In a letter of 14 December 1999 Dr Collier a consultant psychiatrist to the Veterans' Psychiatry Unit, wrote to Dr Hughes a neurologist:
Mr Walton is a 46 year old twice married unemployed fisherman and former RAN able seaman. He describes his problems as seemingly relating to his loss of occupation as a shark fisherman several years ago. He has been associated with fishing all his life, indeed one might say that fishing is his life. Changes in Government legislation led to his fishing business being non-viable. He feels that this was a tremendous injustice and has been on a crusade approaching every possible authority to try to reverse this situation but without success.
He describes depressive symptoms for the last 5 years with lowered mood (though no diurnal variation), reduced enjoyment and slowness in performing tasks, poor motivation, energy and concentration, lowered self esteem and occasional thoughts of suicide by drowning, though no plan to act on these.
He describes an associated constant headache or discomfort across his forehead and behind his eyes. He describes this as like "an ache, a fog".
There is no suggestion of mania or psychosis. He is very anxious about his work situation but denied generalised anxiety or panic attacks.
He drank heavily in the Navy but hardly drinks now. There is no other history of substance abuse. There is no history suggestive of service-related post traumatic stress disorder.
Stressors include unending concern over his loss of livelihood. No other stressors were nominated.Dr Graf, a psychiatrist, on 14 October 1998 wrote a report to the Department of Veterans' Affairs stating that Mr Walton had a very real psychiatric condition for which he was receiving treatment with Efexor from his general practitioner. Dr Graf, set out a full history of Mr Walton's trouble carrying on fishing in the face of his B endorsement and "subsequent tightening of restrictions". He concluded:
Mr. Walton undoubtedly suffers from depression and is receiving ongoing treatment for this. While his psychiatric condition is very real and one argues that it can be seen to have been caused by unreasonable government restriction on his fishing activities and the subsequent stresses that have flowed from this, it is not however due to his war service.
From those reports and the evidence of Mr and Mrs Walton we find that the loss of his means of earning a livelihood by shark fishing has had a real and very significant effect on Mr Walton's health. Although he served in Vietnam with the Navy and had some fear at times, his account to all psychiatrists, psychologists and his local doctor attributed his psychological symptoms to the problems associated with earning his livelihood from fishing, and not to his Vietnam service. Mrs Walton said that her husband had suffered an increase in symptoms around the period of preparing for this hearing. Mr Walton said that in spite of the advice and counselling he was given, that he should look for another career, he has not been able to do so. He said (trans. p11):
No. As last year, I haven't worked. Prior, I was sandblasting and painting, about '98. 1998. I have - since then I have had a couple of other jobs. But I find it extremely hard to hold a job on the land. I just - I am just a person of the sea. Fishing is my life. I was fishing in nappies with my father.
the way in which events seem to have conspired to prevent mr walton obtaining the benefit of any special or exceptional circumstances discretion before this hearing
It is necessary to set out something of the history of management of the SSF together with the history of Mr Walton's involvement in the fishery. He first went shark fishing in October 1977 as a deckhand. It took him seven years to gain sufficient knowledge of the industry and to buy a boat to "be my own skipper". He bought a boat in July 1984. We accept his evidence that he did not know at that time that there were proposals to manage the SSF which meant it was likely to be closed to new entrants in the near future. He first learnt that after he had converted the vessel for shark fishing.
(a)the first endorsement as a Category B fisherman
When restrictions were first announced Mr Walton satisfied the criteria for Category A as published on 30 October 1987 (attachment to A6). The criteria for Category A, which he satisfied was:
iv.purchased or built4 a boat between 26 September 1983 and 25 September 1984 which was not a replacement for a boat operating in any fishery prior to 25 September 1983 and can demonstrate that the subsequent primary use of the boat was in the fishery. Note: previous boat history may be taken into consideration, . . .
There was no issue as to the fact that Mr Walton had purchased a boat between 26 September 1983 and 25 September 1984. Nor was there any issue as to the fact that the subsequent primary use of the boat was in the SSF. The reason Mr Walton was not granted a Category A endorsement was not that his boat had not been primarily used in the SSF. There is no evidence that it had been used anywhere else. The reason for not giving him a Category A endorsement was that he did not have the level of catch which the Australian Fisheries Service required before giving a fisherman a Category A endorsement. It had been administratively decided that to satisfy the policy requirement of "subsequent primary use" a fisherman would have to satisfy criteria which had been developed but not publicised or given any official recognition at that time. Those criteria did not look to the "primary use" of a boat subsequent to its purchase, but to the level of shark caught from that boat in the relevant period. No doubt that is a valid way of demonstrating primary use of a boat in the SSF, but it should not have been used as the only way of demonstrating such primary use (see Green v Daniels (1977) 13 ALR 1)
The history of the development of those criteria can be gleaned from the T documents. In September 1987 the SSF Task Force recommended (T8 p41):
RECOMMENDATIONS
5.THAT ELIGIBLE GILLNET FISHERMEN BE DIVIDED INTO TWO CATEGORIES (A & B) BASED ON THE AGGREGATE LEVEL OF SHARK CATCH WITH SHARK GILLNETS IN ANY THREE OF THE FIVE YEARS PRIOR TO 25 SEPTEMBER 1984. FISHERMEN WHO ENTERED THE FISHERY DURING THE QUALIFYING PERIOD AND WHO FISHED FOR SHARK FOR LESS THAN THREE YEARS BUT FOR MORE THAN ONE YEAR WILL BE REQUIRED TO DEMONSTRATE AN EQUIVALENT ANNUAL PRO RATA CATCH. CLAIMS OF FISHERMEN WITH A CATCH HISTORY OF LESS THAN ONE YEAR WILL BE CONSIDERED ON A CASE BY CASE BASIS.
6.THAT CATEGORY "A" FISHERMEN GENERALLY COMPRISE THOSE PERSONS WHO HAVE TAKEN AN AGGREGATE OF 45 TONNES OR MORE OF SHARK DURING ANY THREE OF THE FIVE YEARS PRIOR TO 25 SEPTEMBER 1984.
7.THAT CATEGORY "B" FISHERMEN GENERALLY COMPRISE THOSE PERSONS WHO HAVE TAKEN LESS THAN AN AGGREGATE OF 45 TONNES OF SHARK IN ANY THREE OF THE FIVE YEARS PRIOR TO SEPTEMBER 1984.
That Task Force also recommended the setting up of a SSF Management Advisory Committee.
The Tribunal in Re Brown at pp547-551 set out the history of management of the SSF. At paragraphs 9, 10 and 11 the Tribunal said:
(9) Many of the fishermen whose licences were endorsed under s 9 (4) of the Act to permit them to take shark by gillnets in the fishery had been using many more than six nets. The reduction of the number of nets which they could use to only six was expected to lead to a substantial reduction in the fishing effort of the boats in the fishery. In order that the categorisation of fishermen should have that effect, the criterion set initially for allocating a fisherman to category A was that over a period of three years he had caught a total of 45 tonnes of shark by using gillnets. That policy was developed by the Commonwealth in consultation with the States through the Australian Fisheries Council, of which the Ministers of the Commonwealth and the States responsible for matters relating to fisheries were members. The Council was advised by a Standing Committee on Fisheries which consisted of senior officials of the Commonwealth and States. In addition, a task force, named the Southern Shark Fishery Task Force, was established to undertake initial evaluation of scientific reports, to apply its knowledge of the fishing industry and so to formulate policy. It comprised officials of the Commonwealth and the States directly involved in the management of the fishery. It made recommendations to the Standing Committee which in turn made recommendations to the Council.
(10) While recommendations of the Task Force were under consideration by the Standing Committee and the Council, the AFS took steps to enable plans recommended by the Task Force to be implemented if they were approved by the Council. When the plan for dividing fishermen into the two categories was under consideration by the Standing Committee and the Council, the AFS obtained from the States copies of the returns of shark taken by individual fishermen in the five years up to 25 September 1984. Some fishermen clearly qualified for inclusion in category A. However, it was apparent that some others might have taken a sufficient quantity of shark to meet the criterion for inclusion but the information in their returns was insufficient for that to be ascertained. Further, some of those whose licences had been endorsed to permit them to take shark with gillnets in the fishery could not meet the criterion either because they had not taken shark in the fishery before 25 September 1984 or because they had done so for less than three years; but they had demonstrated in some other way a strong commitment to the fishery. Officers of Mr McGregor's section of the AFS began, therefore, to develop criteria to assess the qualification of such fishermen for inclusion in category A; they used as their yardstick the criterion set by the Task Force. By the time the Council had endorsed the plan for dividing the fishermen into two categories Mr McGregor's section had set out in a document the additional criteria which its officers had developed.
(11) As soon as the plan was approved by the Council, a letter was sent by the respondent to each of those fishermen who clearly met the criteria informing him that he had been included in category A. Another letter was sent to each of those who were not to be immediately included in that category. The letter was expressed in terms that the addressee's boat "qualified for a category B endorsement"; it had attached to it a statement of the criteria as developed up to that date and contained an invitation to the addressee to supply additional information if he believed that he met any of the criteria. Those letters were sent early in November 1977 [sic should be 87]. Many of the fishermen to whom that letter was sent replied stating that they believed that they did meet one or other of the criteria and giving the relevant information. Some did not meet the criteria but set out information which they believed justified their inclusion in category A. (emphasis added)Mr Walton was one of the applicants in Re Brown. He was also one of the fishermen who received a letter in early November 1987 telling him that he "qualified for a category B endorsement". He responded that he believed he did meet the primary use criteria. He included in his submission to this Tribunal (A1 at item 6) an internal Minute of 14 December 1987 acknowledging that his was an unusual case and should go to a review panel. The circumstances he relied on in November 1987 were his total commitment to fishing in the SSF for his livelihood, and the accidents which befell him in 1985/86.
(b)the internal review of 14 April 1988
Mr Walton was not invited to attend this review. It was done on the papers and he claims that it was based on inaccurate information. That inaccuracy seems to be as to the date of his hand injury and in some respects as to his catch history. Mr Walton provided a statutory declaration to the effect that he derived 100% of his income from shark fishing. The panel commented (T38 p315):
Mr Walton does not satisfy the criteria for issue of a Category A entitlement.
Catch taken by vessels for which the applicant was not the owner or licensee has generally not been taken into consideration.
Loss of fishing time due to personal illness or injury has generally not been taken into consideration. (emphasis added)Mr Walton was aggrieved that although he clearly showed a subsequent primary use of his vessel the "Mary Kaye" in the SSF, and although he provided reasons why his catch did not fully satisfy the criteria used (but not published or mandated in any way) for the year ended September 1986 he was not granted a Category A endorsement. He considered that he had shown that his 1985/86 catch was reduced due to exceptional or unusual circumstances and that his case should have been considered on a "case-by-case basis". A Minute dated 31 March 1988 to the Director Australian Fisheries Service as delegate of the Minister, to consider appeals against refusal to grant Category A endorsements stated "it was agreed special circumstances would be considered on a case by case basis" (item 6 of A1 page 113. That did not happen in Mr Walton's case.
The review panel used the word "generally" in stating that catch taken by vessels for which the applicant was not the licensee had "generally not been taken into consideration" and that "loss of fishing time due to personal illness or injury had generally not been taken into consideration". That shows that the SSF Review Panel could have taken these matters into consideration. But the review panel did not consider whether Mr Walton's circumstances were such that they should be taken into consideration. Mr Walton considered that his circumstances were outside the general course of applications and justified such consideration. The internal review panel failed to consider "on a case-by-case basis" whether his circumstances were sufficiently special to justify a departure from the "general" practice. Such consideration had been foreshadowed in the Minute dated 31 March 1988. It was reasonable to expect it to be undertaken by the internal review panel on 14 April 1988.
The criteria which blocked Mr Walton's endorsement as a Category A fisherman were only approved by the Director on 5 April 1988. They had no legislative force, had not been approved by the Minister and had not been made public, at the time they were applied by the internal review panel in Mr Walton's unsuccessful review of 14 April 1988.
In fact, the first plan of management of the SSF (No. 18) was not determined by the Minister until 19 April 1988 five days after the decision on internal review.
(c)the hearings before the AAT, decisions delivered 23 March 1989 ("the 1989 decision") and 10 December 1990 ("the 1990 decision")
Until July 1988 when the criteria were formally approved by the Australian Fisheries Council they were administered solely as a statement of policy. It was not until the first Management Plan for the SSF, Plan No. 18, was amended by Management Plan No. 20 on 19 September 1988 that there was a statutoryrequirement in paragraph 9.2 of the Plan to apply the eligibility criteria at Schedule 1A to that plan.
Schedule 1A, as set out in paragraph 18 of the 1989 decision, for the first time made public the criteria for entitlement to an allocation of six units, ie a Category A endorsement. Paragraph 2 of Schedule 1A provided so far as relevant (T30 pp276-277):
CATEGORY A UNIT HOLDERS
2. The Manager may allocate six units to a person who meets the following criteria:(a)has a catch history(1) for the nominated vessel totalling at least 45 tonnes of shark during any three years(2) of the period 26 September 1979 to 25 September 1984; or
(b)was not licensed to operate in any fishery between 26 September 1979 and 25 September 1982 but has a catch history totalling at least 30 tonnes of shark during the period 26 September 1982 to 25 September 1984; or
(c)was not licensed to operate in any fishery between 26 September 1979 and 25 September 1983 but has a catch history totalling at least 15 tonnes of shark during the period 26 September 1983 to 25 September 1984; or
(d)purchased a boat between 26 September 1983 and 25 September 1984 which was not a replacement for a boat operating in any fishery prior to 25 September 1983 and can demonstrate that the subsequent primary[3] use of the boat was in the fishery.
Note: previous boat history may be taken into consideration; or
. . .
CATEGORY B UNIT HOLDERS
3. Where a person does not satisfy any of the criteria specified in paragraph 2 to this Schedule, the Manager may allocate to that person a maximum of five units in accordance with the number of nets used on a regular basis by that person during the period 26 September 1979 and 25 September 1984 (sic) with one unit being represented by one net used on a regular basis.
Notes: . . .For the first time the concept of "subsequent primary use" of the boat in the fishery was explained in footnote 3, which provided (T30 p277):
(3)Subsequent primary use includes the requirement that at least 15 tonnes of shark was taken by gillnets in the fishery in each of the years ending September 1985 and September 1986 and takes into account the type of other Commonwealth or State fisheries to which the boat or the licensee has access.
It was that definition of "subsequent primary use", even though it was only published and only became binding after the original and reviewable decisions had been made, which, after September 1988, made it impossible for Mr Walton to demonstrate that the "subsequent primary use" of his boat was in the SSF.
In the application before the Tribunal in March 1989, Counsel for six of the applicants submitted that the Tribunal's powers were those which the respondent had had between 29 April 1988 and the date when Management Plan No. 18 was amended by Management Plan No. 20, i.e. 19 September 1988. If that submission had been successful it would have meant that the criteria to be applied were those which were published in November 1987. Those criteria contained no footnote requiring that "subsequent primary use" be demonstrated only by satisfying the requirement that at least 15 tonnes of shark was taken by gill nets in the fishery in each of the years ending September 1985 and September 1986. Mr Walton, on the figures at T38 pp316 and 321, satisfied that requirement as to the year ended September 1985, but not as to the year ended September 1986, which was the year in which he had the hand injury and the two lots of engine trouble as well as the damage to his nets.
Mr Walton's Counsel submitted in the 1989 hearing that each of his clients had an accrued right to a Category A endorsement, and alternatively that the circumstances were such that it would be unfair to apply the then current criteria at the hearing, rather than those in force when they were first granted the Category B endorsement, which decision they sought to have reviewed. He submitted that their rights had accrued at a time when the criteria published in November 1987 were to be applied. The Tribunal rejected that submission and held that it was obliged to apply the law in force at the time of hearing. Thus the Criteria contained in Schedule 1A to the amended Management Plan had to be strictly applied. The Tribunal concluded at paragraphs 35 and 36 of the 1989 decision:
35. We can understand the frustration felt by the applicants over the delays which have occurred and their displeasure that during the period since they responded to the letter sent to them on 5 November 1987 the law has been changed to their disadvantage. But that does not afford any ground for the Tribunal dealing with their applications in accordance with the law in force at that time. It occurs not infrequently where a factual situation is developing rapidly which requires a change in the law to remedy it; that was the situation of the SSF. Even an accrued right may be taken away by a change in the law, if that is its intended effect (Acts Interpretation Act 1901, section 8(c)).
(6) Conclusion
36. We have come to the conclusion, therefore, that in these proceedings the Tribunal is required to make its decisions by applying strictly the criteria contained in Schedule 1A to the amended Management Plan No. 18.Mr Walton's application for review of the decision that he was entitled to a Category B endorsement of the licence of his boat the "Mary Kaye", for the SSF, and was not entitled to a Category A endorsement, came before the AAT for a substantive hearing in November 1990. The Tribunal delivered reasons for decision on 10 December 1990 ("the 1990 decision"). In paragraphs 7 and 9 the Tribunal set out the facts relating to Mr Walton as follows:
7. The facts relating to the application in the present proceedings are not in dispute. The applicant is a fifth-generation fisherman. Apart from a period of service in the Royal Australian Navy and a short period immediately thereafter, he has been a fisherman for the whole of his adult life. Initially, he did not have the financial resources to buy a boat of his own and worked as a deckhand on the boats of other persons. From about 1980 onwards he began to look for a boat suitable for use for catching shark by gillnet. It was not until June 1984 that he was able to purchase a boat that suited his requirements and his financial resources. Since then he has at all times, except when incapacitated by injury or prevented by mishaps to his boat, been engaged in fishing for shark by gillnet in the Southern Shark Fishery. The licence of his boat has been endorsed throughout that period authorizing him to operate it in the fishery.
. . .9. There is no dispute that the boat purchased by the applicant was not a replacement for a boat which had previously operated in any fishery. There is also no dispute about the total weight of headed and gutted shark taken by the applicant by gillnet in the fishery in the two periods 26 September 1984 to 25 September 1985 and 26 September 1985 to 25 September 1986. They were respectively 16.85 tonnes and 11.484 tonnes. In the second of those two periods the applicant was unable to engage in fishing for three periods. The first of those periods was from 24 April 1986 to 21 May 1986, when he was incapacitated after severely injuring his right hand while sawing firewood. The second period was from 30 May 1986 to 26 July 1986. During that period the applicant was unable to use the boat for fishing because a plank had sprung, the boat had flooded and it had had to be removed from the water for major repairs. The third period was from 19 August 1986 to after 25 September 1986. On the first of those dates there were problems with the boat's engine and 4½ nets were lost. The applicant did not have the financial resources to buy replacement nets and repair the engine immediately. For the rest of the period therefore, he worked for his father and others on their boats to earn the money required.
The Tribunal, in paragraph 10 of its reasons, concluded that the criterion applicable, namely criterion (d), which included reference to the definition of "subsequent primary use" contained in footnote 3, had to be strictly applied. Thus Mr Walton could not satisfy that criterion and the decision under review had to be affirmed. However the Tribunal went on to comment at paragraphs 12 and 15 of its reasons (T31 p291):
12. The applicant stated, and Mr McGregor [the Manager of the Southern Shark Fishery] agreed, that, although there are over 170 Category B unit holders, the applicant is one of a very small number of them (about twelve) for whom shark fishing is the sole, or substantially the sole, source of their livelihood. Mr McGregor acknowledged that a distinction needed to be made between those few fishermen and the rest of the Category B unit holders. We accept that it is probably not possible to maintain the viability of the fishery without further reducing the fishing capacity permitted and thereby forcing many fishermen to leave it. However, we consider that we should place on record our concern, which we believe reflects the concern which society generally would have if it were aware of all the facts, regarding the social consequences of forcing fishermen such as the applicant, whose whole livelihood depends on the fishery and who have invested all their financial resources in boats which will be practically unsaleable without an endorsement of their licences to leave the industry. (emphasis added)
. . .15. However, we note that, if the criteria set by Schedule 1A of the management plan had been less rigid and left scope for application of the principles applied by the Tribunal in respect of other fisheries in cases such as Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366, exercise of the resulting discretion in favour of the applicant, who but for injury and mishaps to his boat and nets would have met criterion (d), would undoubtedly have been justified. To the extent that the management plan did not allow any such discretion, the applicant's sense of grievance has a reasonable basis. It is suggested, therefore, that when the next stage of development of control of the fishery is planned, the provisions of the management plan determined to implement that plan should include in one category persons who are genuinely engaged full-time in operating a boat in the fishery and whose catches are 15 tonnes or more but less than, say, 20 tonnes a year and should be expressed in terms sufficiently flexible to enable persons to be included in that category if they would be included in it but for failing to meet the catch requirement because of temporary incapacity or mishap. (emphasis added)
The Tribunal, in the 1990 decision, made it clear that in its opinion Mr Walton was unfairly treated by the application of rigid criteria which did not allow it to exercise a discretion in his favour "which would undoubtedly have been justified". Mr Walton was and is entitled to feel that his special circumstances should have been recognised in the original decision and in the decision on internal review, which were both made when the decision-makers had power to decide matters "on a case-by-case basis", and were not constrained to apply rigid criteria which left no scope for recognition of special circumstances. Further, he submitted that the management plan applicable after September 1988 should have still allowed recognition of special circumstances. That is a view the Tribunal expressed in the 1990 decision.
Mr Walton, not surprisingly, is aggrieved by the fact that when Mr Gorrie, the Director of the Department of Primary Industries and Energy, wrote to him on 5 September 1988 (A6), responding to his letter of 9 August 1988 seeking further review of the decision granting him a Category B endorsement, he did not even at that time send him the criteria which had been applied to him at all times, although they were not yet in a management plan, but again sent him the October 1987 criteria which, in his view, (which was reasonably based) he could satisfy. Mr Walton is also aggrieved by the acknowledgment in the report to industry by the Chairman of the Southern Shark Fishery Taskforce, Mr Bruce Lillburn (A8), that the non-transferability of Category B entitlements and retirement of Category B fishermen was an important part of the rationale for the creation of Category B entitlements. But the scheme in its original conception was to allow consideration "on a case-by-case basis", and some flexibility, as shown by the use of the word "generally". By the time Mr Walton's application was decided by the AAT any flexibility had been retrospectively removed.
The T documents, at T33, include a letter from former Deputy President Thompson to Mr Walton dated 8 January 1998. In that letter Mr Thompson confirmed that, as Mr Walton had discerned from the written statement of reasons for the AAT's decision in 1990, the two Tribunal Members had felt considerable sympathy for Mr Walton in the situation in which he found himself. Mr Thompson wrote that he was setting out the facts as found at the hearing and an explanation of the Tribunal decision in the hope that it might be of help to Mr Walton in pursuing the matter. He confirmed, as the Tribunal had said in paragraph 15 of the reasons for decision, that if it had a discretion to do so, it considered that it would have been justified in exercising the discretion in Mr Walton's favour and including him in Category A. Mr Thompson also repeated the distinction between Mr Walton, and most of the other fishermen in Category B, in that he was one of a very small number of Category B fishermen who had been dedicated to fishing in that fishery, and that his exclusion from Category A effectively meant that he had no long term prospect of continuing to make his livelihood from fishing. Mr Thompson concluded his letter with his regret at learning of the effects of the virtual loss of his livelihood on Mr Walton's health.
(d) the 1991 reductions in total allowable fishing effort
Although Mr Walton was disappointed that he had only received a Category B endorsement in 1987, and that consequently he could only use five nets which meant it was not practical for him to achieve his aim of buying a larger boat, he continued to make an adequate living from shark fishing during the years September 1987 to September 1990. On 20 March 1991 the Minister for Primary Industries and Energy issued a media release (T10 p84) announcing the immediate introduction of further arrangements to reduce fishing effort in the SSF "to avert the collapse of the fishery".
The interim arrangements implemented from that day were as follows (T10 p84):
The interim arrangements will reduce the number of gillnets each fisherman may use on the following basis: those holding ten nets will be reduced to seven nets, those holding six nets will be reduced to four, those holding four or five nets will be reduced to three. Those holding two or three nets will not be reduced.
As Mr Walton pointed out, those restrictions impacted most heavily on the Category B fishermen. A Category A fisherman who had ten nets and was reduced to seven nets suffered a 30% reduction in allowable nets. A Category A fisherman with six nets who was reduced to four suffered a 33.33% reduction but the Category B fisherman who was reduced from five to three nets suffered a 40% reduction.
It was no doubt unfair that full-time SSF fishermen with only a Category B endorsement should suffer the heaviest net reduction. Mr Walton was so disappointed with the net reduction that for a time from April 1991 to May 1992 he scale-fished to see if he could make a living that way. He found it was not satisfactory and therefore tried another option of moving with his family to Flinders Island as explained in paragraph 22 of these reasons. But although he worked as hard as he could, sometimes in dangerous conditions on his own, as he could no longer afford a deckhand, it became apparent that due to the net reductions he could no longer catch sufficient to make his living as a shark fisherman. As set out above this affected Mr Walton's health badly and led to him obtaining permission for health reasons to lease his fishing entitlements and ultimately led to the sale of his boat.
In July 1993 the Southern Shark Fishery Management Advisory Committee ("SSFMAC") recognised the inequity of the 1991 net reductions and "recommended that it should be addressed immediately" (T12 p134). Original net numbers were restored but the headrope length of all nets was reduced from 600 to 420 metres. In effect all SSF licence holders then suffered a 30% reduction of their pre 1991 net size. The correction improved the position from July 1993 however did nothing to compensate the A6 and B5 fishermen for the losses in the preceding two years when they had lost more than 30% of their nets. Although Mr Walton's catch increased it was not to such an extent as to allow him to fish full-time and make a reasonable living, particularly when the fishery closed for December 1993 and for six weeks in 1994/1995.
Mr Walton demonstrated from his amended graph A2 that even with only five nets, until the 1991 net reductions he was catching amounts of shark equal to or better than the average A6 fisherman. After those net reductions came in, his catch dropped very significantly. His catch remained well above the average (reduced) catch for Category B fishermen, but it was never again over 10 tonnes and was not at a viable level.
(e) the review by the Allocation Advisory Panel ("AAP")
Mr Walton has not rested in his fight for a restoration of his entitlement to earn his livelihood as a fisherman. As set out earlier he made great efforts to continue to earn a livelihood from shark fishing in spite of limitations imposed as part of the management of the SSF. He succeeded, as shown by his graph (A2) which is amended to show comparisons with average Category A and B fishermen until the effects of the further 1991 reductions on allowable fishing effort meant he could not earn a livelihood. That is when he attempted to still eke out a living by moving the family to Flinders Island. But by 1996 he had realised that he could not remain a shark fisherman. He sold his boat. He then made further efforts and representations to politicians, seeking a remedy for the injustices he considered had prevented him continuing as a shark fisherman.
Mr Walton had approached Mr Reith, the Federal Member for Flinders, before 8 February 1988. On that day Mr Reith wrote to the then Minister for Primary Industry and Energy in support of Mr Walton's original application for review of his Category B endorsement (T38 p333).
Ten years later Mr Reith again made representations on behalf of Mr Walton. He also arranged for Mr and Mrs Walton to meet with Senator Parer, Minister for Resources and Energy in Canberra on 3 March 1998. Following that meeting Senator Parer on 25 August 1998 wrote to Mr Reith (T35 p300) stating that he had carefully considered Mr Walton's submission and had written to Mr McColl, the Chairman of the AFMA, about the AFMA's process for determining methods for allocating quotas. Senator Parer stated that he had sought an assurance from Mr McColl that the terms of reference for a proposed AAP would ensure that all operators were treated on a fair and equitable basis. The Minister wrote to Mr McColl (T34 pp298-299):
In order to ensure fair [sic] and equity in quota allocation can you advise me that the terms of reference for the Allocation Advisory Panel will
ensure that all of [sic] operators in the fishery are treated on a fair and equitable basis in the allocation process bearing in mind that AFMA must act in accordance with its legislative objectives; and
identify and include in the allocation process any exceptional circumstances that should be taken into account, particularly where those circumstances arise from inequities in previous allocations of fishing entitlements for the fishery.
While the Terms of Reference for the AAP used almost the exact wording requested by the Minister, it is apparent that the AAP did not address those issues.
The AAP was established with Terms of Reference requiring it to provide recommendations to the AFMA Board on the apportionment of Total Allowable Catch ("TAC") of school shark and gummy shark in the SSF, and the appropriate formula for allocation of Individual Transferable Quotas ("ITQs") for school shark and gummy shark for SSF and other shark fishery permit holders. The Terms of Reference stated (T19 p214):
In doing so, the Panel is to advise the AFMA Board on:
1.the most appropriate basis for allocation of ITQs in the Southern Shark Fishery in accordance with the Fisheries Management Paper No. 8 – "Allocation of Fishing Concessions Where Management Arrangements Have Changed",
and is:
2.to identify and include in that allocation system any exceptional circumstances which the Panel considers should be taken into account, including consideration of any inequity arising from previous allocations of fishing entitlements. (emphasis added)
It is the failure of the AAP to comply with that second paragraph that Mr Walton relies on, in particular, as a special or exceptional circumstance in this application
On 3 November 1998, (T19 p227), the Managing Director of the AFMA wrote to the Honourable Ken Jenkinson, Chairman of the AAP as follows:
As regards past management decisions and how they impinge on giving effect to the requirement of fairness, the AAP is not established as a review body for such decisions which were made in accordance with the law and policy of the time and which were subject to rights of internal, merits and judicial review. If, however, in the course of its considerations the AAP should come across a matter in which there would appear to be a gross injustice from the application of the Policy, AFMA would expect that injustice to be brought to its attention in the AAP's report. (emphasis added)
The terms of reference required the AAP to identify and include in the allocation system any exceptional circumstances which it considered should be taken into account, and specifically included, as one such exceptional circumstance, "consideration of any inequity arising from previous allocations of fishing entitlements". The AAP had a clear mandate to consider the inequity which arose as a result of the original decision in November 1987, and the review in 1988, and from the fact that the AAT, in the 1989 and 1990 decisions, no longer had the discretion which had been available in 1987 and 1989. The AAT was then obliged to apply rigid criteria. However the AAP did not consider exceptional circumstances.
On 29 March 1999 Mr Walton wrote to the Hon. Ken Jenkinson, Presiding Member of the AAP, asking for an appointment to put his case for a review of his Category B endorsement (T36 p302). On 7 April 1999, he received a reply suggesting that he lodge a written submission. He did so as to his own circumstances (T38 pp306-339), and also lodged a separate document as to the general issue of how quota should be allocated (T39 p340).
The AAP reported on 15 July 1999. It recommended that ITQs be based on an individual's catch history and on annual catches in a specified fishery. The AAP recommended that the period for calculating catch history should be (T19 p197):
. . . as recent as may reasonably be, so that the present relative economic positions of fishermen are accurately reflected, but that it be a period long enough to obviate the distortions which in a short period tend to flow from the circumstances that shark catch is affected by the degree of effort being expended at different times on targeting other species, that aggregations and distributions of shark vary from year to year, and that weather conditions affecting the taking of shark also vary from year to year.
The AAP therefore recommended that the apportionment period should be four years which would run from 1 January 1994 until 31 December 1997. In choosing that period, the AAP made it clear that it was not addressing exceptional circumstances, and in particular, was not allowing for consideration of any inequity arising from previous "allocations of fishing entitlements" which would be reflected in the "present relative economic positions of fishermen". The AAP explained in its report of 15 July 1999 (pp206-207) that it did not have time to address the issue whether it came across a matter in which there would appear to be a gross injustice from the application of the policy. It wrote:
We ask leave to defer a full report in response to the requirement of our Terms of Reference that we "identify and include" in the allocation system recommended "any exceptional circumstances which the Panel considers should be taken into account, including consideration of any inequity arising from previous allocations of fishing entitlements".
We have carefully considered the submissions that the allocations of fishing entitlements in the Commonwealth Gillnet sector and the Commonwealth Hook sector during the period from April 1988 until January 1994 gave rise to inequities which should be off-set by a weighting in favour of the gear classifications as against catch history. Whether or not the allocations of entitlements in that period combined with particular circumstances affecting one or more fisherman gave rise to inequity we have not yet determined. (emphasis added)In the final paragraph of its report, at p207, the AAP again referred to submissions about individual circumstances claimed to be exceptional and said (T19 p207):
If the AFMA Board desires our views on these cases, based for the most part on the personal circumstances of the permit holder, we ask that further time be allowed us. If the AFMA Board decides to accept our recommendation that there be a general catch verification process, it may be that enquiries could be made in the course of carrying out that process, of the authors of these submissions in order to obtain in each case a complete account of the circumstances relevant to determination of the question whether there are "exceptional circumstances" in the sense indicated by our Terms of Reference.
Thus, although the Minister, Senator Parer, after meeting with Mr and Mrs Walton in Canberra on 3 March 1998, and after considering Mr Walton's submission had written to Mr McColl, the Chairman of the AFMA, seeking his assurance that the terms of reference of the AAP "would ensure that all operators are treated on a fair and equitable basis and inequities in previous allocations of fishing entitlement in the fishery would be taken into account" by the AAP, (T35 p300) that did not happen.
It is clear that the AAP did not address the special or exceptional circumstances issue which Mr Walton has been trying to have addressed since he lodged the application for review by the AAT, which gave rise to the 1989 and 1990 Tribunal decisions. Mr Walton points to that omission by the AAP and says that his special circumstances require that the AAP allocation of ITQ to him should be varied because of his special, or exceptional, circumstances, which were not taken into account by the AAP.
In explaining why it recommended use of the three best years during the specified four years, for allocation of ITQs among individual fishermen, the AAP stated (T19 p205):
The personal vicissitudes of a fisherman's life, such as injury or other illness, loss of, or serious damage to, gear or vessel, occurring during so short a period as four years are likely to affect his aggregate catch during the period to an extent that distorts his relative economic position. By using the best three years of the period the risk of such distortion is lessened, in our view.
However, by the period ending December 1997, the past injustice consequent upon the rigid application of the management criteria applied in the SSF, even where that was not appropriate or required, had so reduced Mr Walton's allowable catch that he was not able to remain in the fishery due to bad health and sold his boat in 1996. Thus those past injustices meant that the ITQ allotted to Mr Walton, which was calculated by referring to his catch over the chosen period, did not reflect Mr Walton's "exceptional circumstances" even though those circumstances arose "from inequities in previous allocations of fishing entitlements in the fishery". That was the very issue the Minister, Senator Parer had required be addressed by the AAP (T34 p298-9 and T19 p214).
(f) the review of the AAP allocation of ITQ to Mr Walton
On 6 September 1999 the AFMA wrote to shark fishers explaining the implementation of ITQs (T23 p240). The letter concluded with the following reference to exceptional circumstances (T23 p242):
Consideration of Exceptional Circumstances
The final section of the AAP report concerns exceptional circumstances. To a large extent, the possibility of catch history being affected by exceptional circumstances in any one year has been addressed by the recommendation that only the best three of the four year period 1994 – 97 be taken into account. Persons who believe that their catch history has been affected by exceptional circumstances will have the opportunity to appeal when the catch verification process has been completed, quota has been allocated, and Permits varied or granted. If you are not satisfied with your quota allocation, you can appeal after a permit has been varied or granted, and the quota appears as a condition of the Permit. You will be notified of your full appeal rights when you receive your Permit and/or quota allocation. (emphasis added)By letter dated 29 September 1999, Mr Walton responded to the request that he lodge a completed claim for shark catch history to obtain his ITQ. He also explained how his best catch yield of approximately 7 tonnes in the specified allocation years reflected the contested Category B endorsement and further net reductions in 1991. He said were it not for the net reduction in 1991, it would have been 16-20 tonnes. That is supported by the graphs (T41 p383 and A2). Mr Walton also detailed his unceasing efforts to have past injustices corrected. In his careful and thorough submission he wrote (T41 p373):
The 'B' class consequence did result in:
lower tonnage caught
loss of income
more time at sea in bad weather
no future projection
financial hardship
ill health, stress and depression
With that submission Mr Walton included a number of supporting documents including the graph of his catch (T41 p383) and copies of the 1990 decision and the letter from former Deputy President Thompson confirming the interpretation he had placed on the 1990 decision: Mr Walton wrote (T41 p374):
Today's quota allocation is the opportune time for AFMA to identify and address my exceptional circumstances and ensure that fair and equitable allocation be considered to my quota by taking into account that my catch for the year 1994 would have been in the vicinity of 16-20 ton, if I was initially left to fish in my capacity of an 'A' class fisherman.
I have been advised that AFMA do have a special circumstances provision in place.
I am requesting that you deeply consider the above and enclosed and if necessary contact me for any submission copy details you may require.
The information I have provided in this letter is to assist you in determining a fair and equitable decision on the quota you allocate to my permit, without the necessity of going through another appeal process.On 21 December 2000 Mr Walton was advised of the making of the relevant decisions. He received a permit allowing him to take 8286kgs of Gummy Shark and 2746kgs of School Shark (T47 p408). That entitlement was calculated on the basis of verified catch history and did not take account of Mr Walton's claimed special circumstances.
On 4 January 2001 Mr Walton applied for review on the basis of his special circumstances (T48 p409). A reconsideration decision, the decision under review in this matter, was made by a delegate on 15 March 2001 (T2). That decision affirmed the quota allocation of 21 December 2000.
It is clear from the delegate's decision, that although she referred to special circumstances, she did not herself address that issue. She wrote (T2 p7):
I have carefully considered your claim that your special circumstances arise from being granted, unfairly in your view, a B5 entitlement which you claim has restricted your catching ability. However, in my view these do not form isolated or special circumstances.
Your case against being granted a B5 entitlement was reviewed by the AAT and the decision was found to be corrected [sic] and therefore affirmed. There were several other fishers who also appealed against being granted a B5 entitlement and the decision was also affirmed by the AAT.
In line with the specific request of Senator Parer, the then Minister responsible for fisheries, the independent Allocation Advisory Panel (AAP) carefully considered whether exceptional circumstances arose from the different gear holdings during the qualifying period. They concluded that they did not.The delegate reached her conclusion that Mr Walton's circumstances were not "isolated or special" without any analysis of the matters which Mr Walton claimed constituted special circumstances. She stated that she gave weight to the fact that the decision Mr Walton sought to have reviewed had been affirmed by the AAT, but she appears not to have understood that the AAT had clearly stated, at paragraph 15, that it did not have power to consider special circumstances, but that if it had had such a discretion, the exercise of the discretion in Mr Walton's case "would undoubtedly have been justified". The delegate also, by omitting reference to the acknowledgment by the AAP that it had not had time to deal with the issue of injustice arising from inequities in previous allocations of fishing entitlements for the SSF, misrepresented the significance of that report.
conclusion as to special circumstancesWe find that Mr Walton's circumstances are special within the generally recognised test of special circumstances. That concept frequently arises in Social Security matters. In Re Ivovic and Director General of Social Services (1981) 3 ALN N95, the Tribunal at N97, said:
The reference to special circumstances. . . requires, . . . that there must exist in the circumstances of the case, a factor or factors which justify the making of an exception in whole or in part to the principle . . . which the Act otherwise establishes.
The Tribunal explained that while keeping the dominant principle of the relevant legislative provision in mind, the decision-maker must be prepared to respond to the special circumstances of any particular case by reason of which strict application of the legislation would be "unjust, unreasonable or otherwise inappropriate".
In Re Beadle and Director General of Social Security (1984) 6 ALD 1 the Tribunal said, at 3:
An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
That passage was approved by the Federal Court in Beadle v Director-General of Social Security (1985) 60 ALR 225; 7 ALD 670. The Full Court, at ALR 230; ALD 675, said:
While we would place less emphasis on one dictionary definition of "special", we are in broad agreement with the approach of the Tribunal and are in agreement with its conclusion.
The Full Court of the Federal Court in Trimboli v Secretary, Department of Social Security (1989) 86 ALR 64; 17 ALD 201 again considered the concept of special circumstances. Hill J said, at ALR 73; ALD 209:
It is neither appropriate nor proper here to attempt a definition of what circumstances will be "special". The occasions when circumstances are special will vary with the facts of each particular case. Further, the decision as to when it will be "appropriate" to exercise the power … involves the exercise of a discretion which is extremely broad and which is not to be confined, save in accordance with usual principles, namely, that it is to be exercised bona fide and for the purposes for which the discretion is conferred, such purposes being determined by reference to the policy and purpose of the Social Security Act: cf Giris Pty Ltd v FCT (1969) 119 CLR 365 at 384.
The most difficult aspect of the use of a special circumstances discretion is the balancing required between, on the one hand, the need to maintain conformity with the general principles underlying the relevant legislation or scheme and, on the other hand, the rectification of injustice or unfairness which would result from a rigid application of the legislation or scheme.
The concept of special circumstances has been recognised in the fisheries context in Re Aston and Department of Primary Industry (1985) 4 AAR 65 at p75 where the Tribunal said:
The policy adopted by the Australian Fisheries Council sought to achieve a re-organisation of the SBT industry and its implementation had that effect. To achieve that end it was not and is not necessary that all relevant decisions should be made in accordance with the policy. But before such a policy is departed from, it is necessary to have regard to the element referred to by Brennan J, namely, fairness and continuity in the administrative process. The application of a policy in the general run of matters coming up for decision enables decision- making to be just, not arbitrary. (emphasis added)
Similarly, in Re Evans and Secretary to the Department of Primary Industry (AAT 2472, 18 December 1985) the majority decision referred to the fact that review Panels set up to review cases where endorsements have been refused, generally apply the entry criteria with some flexibility. The Tribunal stated that a fisherman who otherwise met the criteria, but failed to fish in the relevant period could be granted the endorsement sought, if the only reason for his failure to fish in the qualifying period was illness, vessel breakdown or other special cause.
The Members comprising the majority in Re Evans concluded their discussion of the role of the Tribunal in applying policy, while taking account of special or unique circumstances, as follows:
In these circumstances, it seems to us that the Tribunal ought to apply the policy enunciated by the Minister for Primary Industry, save in so far as it finds that there are special or unique circumstances which ought to be taken into account. This is particularly so as the policy enunciated by and given effect to by the Minister for Primary Industry has led to a restructuring of the industry and has affected adversely or beneficially a large number of fishermen in Victoria and Tasmania. Many fishermen have received an appropriate endorsement upon their fishing licence and may well have acted on the faith of the restriction in scallop vessel numbers. Many other fishermen have either failed to apply for an endorsement or been refused an endorsement because they have not yet met the eligibility criteria. The credibility of the administrative process requires that a scheme having such effects be applied uniformly, subject to any unique circumstances that arise. A finding in favour of one applicant who does not meet the eligibility criteria and who has no special or unique circumstances would lead to arbitrary and unjust decision-making.
In Re Bolding and Australian Fisheries Management Authority [1999] AATA 494, the Tribunal decided that the quotas granted to Mr Bolding, Mr Barrett and Mr Kavardas in respect of permits to fish in a fishery should be increased by 10%. The Tribunal, at paragraph 23, recognised the legislative objectives set out in the Fisheries Administration Act 1991 and the Act.
This Tribunal recognises the objectives set out in s 3 of the Act and understands the importance in particular in this review of paragraph 3(1)(b). The AAP, in explaining how it arrived at its recommendation as to calculation of ITQs, set out the annual catches for the past five years of school and gummy shark in the enlarged SSF as follows (T19 p194):
The total annual catches for the past five years of school shark and gummy shark in the enlarged Southern Shark Fishery taken by the fishermen who held licences to take shark in the sectors of which the enlarged Fishery is to consist, were as follows:
Year School Shark Gummy Shark
959 t 1814 t
853 t 1833 t
797 t 1650 t
749 t 1614 t
560 t 1488 t
It commented:
The Panel understands that the AFMA Board and the Southern Shark Fishery Management Advisory Committee (SharkMAC) presently believe that a reduction of the annual catch of school shark to 475 tonnes to be achieved by reduction of the TAC over the 5 years 1997 – 2001, will be necessary to ensure an 80% probability that in the year 2011 the mature biomass of the species will exceed the biomass in the year 1996.
Mr Parkin, in the respondent's Statement of Facts and Contentions, contended:
It is appropriate that the AAT apply the policies which AFMA applied, unless the AAT is satisfied that there is a cogent reason not to. To give Mr Walton extra quota would require a departure both from the policy for allocating quota and from the policy for restricting some permit holders to "category B" entitlements in 1994-1997.
To give Mr Walton "category A" status would be to substitute a different policy which is much more generous. The policy that was applied was more onerous than to require catch at an average of 15 tonnes p.a., adjusted pro rata, during the periods when the permit holder was able to fish. It is appropriate to make the common-sense assumption that most permit holders (especially on small boats) were unable to fish for some part of the qualifying years.Mr Parkin submitted that if we were to increase Mr Walton's ITQ, in view of the aim being to reduce total catch so as to ensure the long term viability of the fishery, we would in effect be reducing the ITQs of other fishermen in the SSF to make up for any increase in Mr Walton's quota. That is not necessarily so. We note that in Re Bolding the Tribunal said at paragraph 34:
The Tribunal must do as best it can on the information it has to arrive at the preferable decision. In the opinion of the Tribunal this can be achieved in the instant case by applying a 10 per cent increase in the verified figures for each applicant in relation to the key species for the years, or proportion of years, covering the period April 1991 to April 1993. If after that adjustment is made that alters the individual applicants' ITQ, then that adjustment will need to be made within the overall TAC in the way in which it has been made, for instance in respect to Mr Barrett when the increase in his verified catch figures was recently taken into account. The decisions under review should be varied in accordance with the reasoning contained in this paragraph.
On the other hand the AFMA may decide that the impact on TAC for the SSF of any increase in Mr Walton's ITQ, would be so minimal as to be able to be absorbed by increasing the TAC for the SSF by that amount.
If we are satisfied that there are special or exceptional circumstances which make the current ITQ "unjust, unreasonable or otherwise inappropriate", then this Tribunal must have power to vary an ITQ. Mr Parkin, as set out at the commencement of these reasons, accepted that the Tribunal had power to vary Mr Walton's ITQ, if it should conclude that would be appropriate, taking into account all relevant circumstances including the particular circumstances of Mr Walton. If the AAT has power to review a decision, it must have power to increase a particular applicant's ITQ. The fact that this may either increase the TAC by a corresponding amount, or provide a very small reduction in the ITQ of other fishermen, in order to compensate for that increase, is something which necessarily follows from the power of the AAT to review a decision as to ITQ.
We find that the following circumstances are special in this matter:
(i)Mr Walton's lifelong commitment to fishing and the fact that fishing has been the source of his family's livelihood for many generations.
(ii)The fact of his hand injury, the flooding of his engine room, the later problem with his engine and the damage to his nets all occurring during the second year of his career as skipper of his own vessel, and during the period of relevant catch history.
(iii)In making the first decision to give Mr Walton a Category B endorsement, AFMA took into account only one factor in determining whether Mr Walton had demonstrated whether Mr Walton had "subsequent primary use" of a boat in the fishery.
(iv)The fact that when Mr Walton agreed to help out Mr Wagland by skippering his boat in part of the 1986/87 year, it was not known that catch history of a boat would become part of the criteria for endorsement as a Category A or B fisherman.
(v)The failure of the review panel in April 1988 to consider whether "on a case-by-case basis", Mr Walton satisfied the "subsequent primary use" criteria in any way other than by satisfying the unpublished demonstrated catch history criteria.
(vi)The way in which the law was changed so that although the review panel in April 1988 could and should have considered Mr Walton's special circumstances "on a case-by-case basis", the AAT in 1989 and 1990 was unable to do so.
(vii)The fact that the AAT in 1990 said that if it had a special circumstances discretion, its exercise "would undoubtedly have been justified" in Mr Walton's case, but the discretion then was no longer available.
(viii)The recognised inequity of the net reductions in 1991 on Category B fishermen which had the greatest impact as explained in the Fisheries Survey Report 1993 (A5). That inequity was corrected in July 1993 but with no compensation for the period of the inequity.
(ix)Mr Walton's commitment to the fishery as shown by his moving his family to Flinders Island in a vain attempt to still make a living from fishing in the SSF after the net reductions.
(x)The impact on Mr Walton's health of his difficulties and finally of his inability to continue to earn his living as a fisherman in the SSF.
(xi)Mr Walton's continuing commitment to the fishery as demonstrated by his further lobbying of politicians including his trip with Mrs Walton to Canberra to meet with the Minister, Senator Parer.
(xii)The fact that Mr Walton's submission, according to the Minister's letter to the Hon. Peter Reith, led the Minister to ask for an assurance that the AAP terms of reference would include the identification of exceptional circumstances "including consideration of any inequity arising from previous allocations of fishing entitlements".
(xiii)The fact that the AAP, as it acknowledged, failed to deal with that term of reference.
(xiv)The fact that the AFMA stated to fishermen that exceptional circumstances would be dealt with on review, but the decision-maker in the reviewable decision did not herself consider Mr Walton's particular circumstances.
Some of these circumstances, such as the damage to nets in the 1985/86 year, may not be special in the sense of unusual or exceptional, but when taken together with the three other problems Mr Walton faced that year we consider that combination of bad luck, comprising four problems in one year is unusual. But it is more relevant to consider that event together with all the other circumstances set out as simply one small part of a picture which overall is very unfortunate and which at times reflects the failure to apply policy and at other times the repeated application of policy to Mr Walton in an unfair and unjust way. The history shows it to have had extremely unfortunate consequences on Mr Walton's health and livelihood.
The legislation now allows the Tribunal to adjust the ITQ allotted to Mr Walton to take account of those special circumstances. To do so is not inconsistent with policy, but would in fact be consistent with the policy reflected in the terms of reference of the AAP which should have been addressed by the AAP, and when it failed to do so, by the delegate on reconsideration. The difficulty is to know what adjustment should be made.
the tribunal's decisionIn his final submission Mr Walton said at p62:
The number of fishermen who were taking large quantities of shark never left the industry and are still taking large quantities of shark. Not one A10 operator has left the industry. The majority of fishermen who left the industry were from the B5 sector and many of these left the fishery under duress. The whole intention of the two categories was to create a category of fishermen that would be eliminated through natural attrition, starved into submission and walk away.
The policy of the ASS has, in effect, protected the larger operator and provided them over many years with a safe haven for continual large-scale fishing. This is not a direct attack on the A10 operator, but one of many instances to show how fisheries policy has not worked.That submission is supported by A7, a table prepared from data from the SSF Monitoring Database. It shows that over the years from 1986-2000, the percentage of total SSF catch of A10 fishermen increased from 29 to 62. In that same period the percentage of catch of A6 and B5 fishermen remained at 13 and 6 respectively.
Mr Walton also referred the Tribunal to a newsletter SharkMAC (A4) from the Southern Shark Management published in late 2001. At item 4.2 it stated:
TACs for the 2002 Fishing Season.
SharkMAC discussed the setting of gummy and school shark TACs in 2002 in line with SharkFAG's advice that there is no biological concern for the main species gummy shark, but a high level of concern for the status of school shark. SharkMAC noted that allowing for some year to year variation, the catch of gummy shark remains extremely stable over a wide range of effort.
Thus Mr Walton submitted there was no longer any need for quotas in respect of gummy shark.
Mr Walton said that he had sold his vessel the "Mary Kaye" in 1996 because it was no longer viable for him to go to sea to make a living. He said that from 1 January 2001, for the first time, fishermen were again allowed to sell quotas and licences and as a result of that he leased his 11,032kg quota to other shark fishermen that needed more quota. However, at the time of the hearing in December 2001 he was only earning $48.00 a week from that arrangement after paying $4100 per annum for a licence which he cannot use.
conclusionThe Tribunal asked Mr Walton what decision he would like it to make. He said a number of times, he would like the Tribunal to see the inequities and the unlevel playing field of the past, and that the way the AFMA had administered the fishery had ruined his working career "so that he was on the scrap heap" (trans. p34). The Tribunal asked him, if it did reach that conclusion, what he submitted the Tribunal should do about it. He said (trans. p34):
I would like the AAT panel to rule in my favour, and to fix some of the inequities of the past, and some of those injustices. Give me the quota holding of the average A10 fisherman. Now, I don't know exactly what that average is. There is 40 A10 boats operating. And I am not precisely aware, or I really couldn't even give you a random guess at that average. But that – had I been left alone by AFMA, and had I not been persecuted for failing to catch 15 tonne of fish in one year out of five. And had I been given an A6 entitlement, my ultimate catching ability would have been up there with the rest of the A10 fishermen.
Mr Walton said that having sold his boat in 1996, he still did not have another boat. He explained (trans. p10):
I cannot fish for 8 tonne of shark. That is economic suicide. You just cannot do that.
He expanded that evidence (trans. p10):
. . . last year I had 11 tonne of shark. That was my quota. That would be borderline. At approximately $8 a kilo is going to give you roughly 90,000 a year income. If things went well, you might get to keep 15 to 20,000 of that. This year, owing to the 23.4 per cent reduction in quota we have suffered – the coming year, I should say, 2002, I have got approximately 8 tonne. Which is not viable to have a vessel and go to sea and fish for. You just couldn't do it. The 11 tonne was borderline. The 8 tonne is just - you just don't do it.
Mr Walton said he has found it extremely hard to hold a job on the land. He said (trans. p11):
I find it extremely hard to hold a job on the land. I just - I am just a person of the sea. Fishing is my life. I was fishing in nappies with my father.
We find that Mr Walton should have been granted an A6 licence originally, rather than being one of a small group of full-time shark fishermen in the SSF fishery who were only granted Category B endorsements. He provided proof that he was a full-time SSF fisherman and explanations of the low catch in 1985/86 which did not detract from his characterisation as a full-time SSF fisherman. The difficulty is to know how to translate that finding into a new decision in substitution for the decision under review.
Mr Walton asked us to find that he would ultimately have become an A10 fisherman if he had been granted an A6 endorsement in 1987. That may be so but it involves more conjecture than we consider appropriate for us to use in this matter. However, as Mr Parkin pointed out, even to find that Mr Walton should have been granted an A6 endorsement in 1987 does not suggest what variation of his December 2000 ITQ is now appropriate. The AAP recommended that ITQs be based on the best three out of four years of fishing prior to September 1997. But, we find that for reasons of ill-health related to the past history of this matter, Mr Walton had ceased fishing in early 1995. Thus his fishing effort in the years looked at by the AAP reflected:
(i)the inequity due to his disputed Category B endorsement
(ii)the net reductions of 1991; which were recognised as inequitable in their impact on Category B operators
(iii)the consequences of Mr Walton's ill-health due to the effects of (i) and (ii)
(iv)the lease of Mr Walton's fishing entitlements for two years from 1 March 1995 (see T53 p424 paragraph 34).
Mr Walton's fishing expertise and commitment is shown by the fact that in the three years ending September 1988, 1989 and 1990, even with the restriction to five nets as a Category B fisherman, Mr Walton had easily enough tonnage to qualify as a Category A fisherman and was catching at or above the average catch of an A6 operator (A2).
We have already found that Mr Walton should have been granted an A6 endorsement in 1987. We consider that the A6 average catch over the years 1994-1997 should be used as the starting point of his quota allocation. We do not have figures for the year ending 1997 but exhibit A2 included a Table 6(b) prepared from data from the SSF Monitoring Database MAFRI Queenscliff (23 June 1997). It showed the mean catch of A6 fishermen in the years 1994, 1995, 1996 as 18, 21 and 20 tonnes respectively. We consider taking the average of those three catch years as the catch basis for Mr Walton's quota is the best we can do on the evidence before us to take account of the special circumstances in this matter. We refer in particular to the inequity Mr Walton suffered arising from the previous allocation to him of a Category B licence and of the unfair impact on Category B fishermen of the 1991 net reductions. We consider that Mr Walton's ITQ in December 2000 should have been based on a catch of 19.666 tonnes, (rounded up to 20 tonnes) being the average mean catch over the three years 1994-1996 of a Category A6 operator.
The evidence was that all operators in the SSF had their quotas further reduced in 2001 by 23.4% (see A9). The increase we propose making to Mr Walton's quota for 2000 will require a recalculation of Mr Walton's quota for the year 2001. There will be a 23.4% reduction. That will leave Mr Walton with a quota of over 15 tonnes for 2001. Mr Walton said in evidence that a 12 tonnes quota will provide a marginal living. We are of the view that our decision should ensure that Mr Walton has some years of more secure fishing than a "marginal" quota would allow him. That is by way of recognition of the role the past inequities have played in the hardship and ill health he has suffered since 1987. We are of the view that our decision to grant Mr Walton a 20 tonnes or 20,000 kilogram quota for the year 2000 will mean that Mr Walton can return to fishing for his livelihood if that is still his choice. We consider that leaving Mr Walton with that option is the preferable outcome of the exercise of our discretion, in the special and exceptional circumstances of this matter. We do bear in mind the objectives of the Act which include ensuring that the exploitation of fisheries resources is conducted in a manner consistent with the principles of ecologically sustainable development and that the living resources of the Australian fishing zone are not endangered by over exploitation. We are aware that the amount of any increase we make to Mr Walton's quota should not be too generous. On the other hand as SharkMAC 44 (A4) stated there is now "no biological concern for the main species gummy shark".
We also recognise that Mr Walton may not be the only fisherman in a similar situation, but the evidence is that he is one of only a small number of full-time professional Category B fisherman who were solely reliant on the SSF. We consider that even a fairly substantial increase in his 2000 quota, bearing in mind that there is no longer any "biological concern for the main species gummy shark", should be able to be absorbed either by increasing the TAC or by an adjustment. It is a matter for the SSF, as to whether that increase is accommodated by slightly increasing the TAC or other adjustment.
The reviewable decision will be set aside. The matter will be remitted to AFMA for reconsideration in accordance with the direction that Mr Walton's ITQ in the SSF for the year 2000, for all purposes including the allocation of quotas in subsequent years, be 20,000 kilograms divided between school shark and gummy shark in the same proportion as the quota in the relevant decision T47 p408.
We will reserve liberty to the parties to apply for clarification in case there is difficulty implementing this decision.
I certify that the 123 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr P Lindsay, Senior Member and
Mr C Ermert, Member
(sgd) Grace A Carney
Personal AssistantDate of Hearing 18 December 2001
Date of Decision 20 March 2002
Solicitor for the Applicant Nil — Self RepresentedSolicitor for the Respondent Mr Parkin, Australian Fisheries
Management Authority
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