White and Australian Fisheries Management Authority
[2005] AATA 174
•28 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 174
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2002/57
GENERAL ADMINISTRATIVE DIVISION ) Re RONALD MICHAEL WHITE Applicant
And
AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
DECISION
Tribunal Mr J Handley, Senior Member
Assoc Prof B Davis, Member
Date28 February 2005
PlaceHobart
Decision The decision under review is set aside and in substitution IT IS DECIDED –
(i) that the application be remitted to the respondent with the Direction that quota be allocated for the 2001 year by reference to the average catch of the best three years in the period 1990 to 1993 inclusive; and
(ii) that there be an apportionment in quota when allocated between school and gummy shark by reference to the evidence heard in these proceedings.
(Sgd) John Handley
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. T2002/57
GENERAL ADMINISTRATIVE DIVISION )
Re :RONALD MICHAEL WHITE
Applicant
And :AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
DIRECTION
Tribunal :Mr J. Handley, Senior Member
Date :13 May 2005
Place :Melbourne
Pursuant to s.43AA of the Administrative Appeals Tribunal Act 1975 and with the consent of the Solicitors of the parties, the Registrar is DIRECTED to alter the text of the decision made on 28 February 2005 at paragraph 133(i) and paragraph (i) of the Cover Sheet by deleting the word “average” and substituting the word “aggregate”.
(Sgd)John Handley
Senior Member
FISHERIES – review of decision allocating quota – respondent adopted recommendations of an advisory panel to set quota on basis of average catch of best three years in four year period between 1994 and 1997 – increase in quota permitted if exceptional circumstances are found – discussion of meaning of “exceptional circumstances” – applicant has long history as a shark fisher – served on many industry bodies and been engaged in scientific research – diagnosed with diabetes in 1993 – prior catches significant – illness severely restricted activity – catch returns in 1994 to 1997 very low – improvement in health – boat under renovation caught fire and destroyed – exceptional circumstances found – some years outside 1994 to 1997 used as basis for allocation of quota – decision under review set aside
Fisheries Management Act 1991 (Cth) s3 and s165(5)
Fisheries Administration Act 1991 (Cth) s6
Bannister Quest Pty Ltd v Australian Fisheries Management Authority Federal Court,
14 August 1997, 819/1997)
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Skoljarev and Australian Fisheries Management Authority (1995) 21 AAR 305
Re Zalups and Australian Fisheries Management Authority [2003] AATA 908
Re Fischer and Australian Fisheries Management Authority [2002] AATA 857
Re Graham and Australian Fisheries Management Authority [2002] AATA 862
Re Walton and Australian Fisheries Management Authority [2002] AATA 184
Skoljarev v Australian Fisheries Management Authority (1996) 22 AAR 331
Nikac and Others v Minister for Immigration and Ethnic Affairs (1998) 20 FCR 65
Government Employees’ Health Fund Ltd v Private Health Insurance Administration
[2001] FCA 322
Hicks v Aboriginal and Torres Strait Islander Commission [2001] FCA 586
Kent v Wilson [2000] VSC 98, (24 March 2000)
REASONS FOR DECISION
28 February 2005 Mr J Handley, Senior Member
Professor B Davis, Member1. The applicant applies to review a decision made on 22 April 2002 (the “reviewable decision”) by a delegate of the Australian Fisheries Management Authority (“AFMA”) pursuant to s165(5) of the Fisheries Management Act 1991 (“the Act”).
2. The reviewable decision varied a decision made at primary level on 19 December 2000. The earlier decision granted a quota of 2324kg of gummy shark and 16578kg of school shark in the 2001 season (T37, page 342). The reviewable decision did not find any “special circumstances” but varied the quantity of quota by reference to quota units. The reasons for this decision, and the corresponding conversion to kilogram weight in the 2002 year, are not apparent by the reviewable decision (T2).
3. The applicant applied to review the latter decision upon the basis that he asserted that his circumstances were “exceptional” and a larger quota should have been allocated to him.
4. This application was heard simultaneously with two other applications. All three applications sought review of decisions of AFMA with respect to quota allocations in the SSF. Each applicant was separately represented by Counsel. Mr Reed appeared on behalf of AFMA in each application. Each review was concerned with where “exceptional circumstances” existed thereby permitting an increase in quota.
5. Orders were made pursuant to s 35 of the AAT Act on 4 August 2004 restricting disclosure – therefore publication – of the documents tendered by the applicant and identified as exhibits “White 4, 5 and 5A”. Access to these documents and evidence heard concerning their content is restricted by the Order to the applicant, the representatives of the other parties in the applications heard simultaneously (Gale T2001/97 and Bell T2001/144) and the Staff of the Tribunal and Auscript. The references in this decision to those documents and their content is found at paragraphs 20, 21, 25, 29, 30, 32, 33, 91 and 121. Accordingly, there will be two published versions of this decision, namely –
(i)a version that will be available to the persons, as above consistent with the Order of 4 August 2004 and
(ii)an edited version, available to all other persons, where parts of paragraphs 20, 21, 25, 29, 30, 32, 33, 91 and 121 will be – and will appear to be – deleted.
6. By way of background, the SSF has been the subject of a number of management initiatives from the 1980’s. AFMA recognised that shark species were vulnerable to “over fishing” and control methods needed to be introduced to conserve the species and to provide long term viability to the shark fishing industry.
7. Initially, controls upon shark catch were by way of “imput controls” where restrictions were made upon the catch of licensed members of the SSF. In the late 1980’s and early 1990’s it became obvious that the “input controls” were not preventing over exploitation. A number of industry publications and policy statements were issued by AFMA recommending an altered approach to management of the SSF which involved the implementation of “output controls”. This practice involved an annual review of the quantity of shark stock and the imposition upon members of the SSF of a catch level known as a “total allowable catch” (“TAC”). A TAC is then allocated to each individual member of the SSF.
8. Throughout the early 1990’s AFMA continued to be concerned about the viability of shark stock. A number of meetings were held in April 1997 by the Southern Shark Fishing Management Advisory Committee (“SharkMAC”) which recommended that a system of individual transferable quotas (“ITQ’s”) should be implemented into the SSF. At the same time consideration was given to a variation of the basis upon which quotas to members of the SSF would be allocated in future years. A press release was issued on 6 June 1997 advising that upon the recommendation of SharkMAC, catches recorded after 10 April 1997 would not be considered for inclusion into an ITQ as allocated to eligible SSF members.
9. Later, SharkMAC members and AFMA staff held a number of meetings throughout Victoria, Tasmania and South Australia to promote the objective of long term viability of the shark fishing industry and to obtain feedback from SSF members. The Southern Shark Allocation Advisory Panel (“the Panel”) was established to provide advice with respect to the allocation of school and gummy shark quotas. After it consulted with shark fishers it recommended that ITQ’s of school and gummy shark in the SSF be allocated upon the basis of the fisher’s best three years of verified catch for the four year period between 1994 and 1997 inclusive. It was thought that this catch history period would “accurately reflect present relative economic positions of concession holders within the fishery”. It was also thought that any distortions within this period by reason of altered catch, weather conditions, fishing performance and seasonal fluctuations would be minimised by preserving a “relative economic position” by a formula based on consideration of catch histories for the best three of the above four years (refer proof of evidence of Margot Sachse). A decision to not have regard to shark catch after 10 April 1997 was made to prevent fishers increasing their shark catch “in the hope of getting a larger allocation of quota in the future” (refer Media Release 6 June 1997, T15 p160).
10. The Panel ultimately published its report on 15 July 1999. At Chapter 7 the members of the Panel acknowledged that one of their terms of reference was to “identify and include” (for the purposes of the system of allocation of quotas) “any exceptional circumstances which the Panel considers should be taken into account including consideration of any inequity arising from previous allocations of fishing entitlements” (T19 p206). The panel considered inequities within the Commonwealth Gill Net Sector and the Commonwealth Hook Sector but with respect to the SSF it noted that the imposition of an ITQ to fishers within the SSF would be by way of condition upon a licence permit issued under s32 of the Act. Any decision as to the imposition of conditions would be reviewable by AFMA under s165 of the Act and ultimately by the Administrative Appeals Tribunal.
11. The Panel acknowledged that there may be circumstances particular to some fishers which could be regarded as being “exceptional” and an evaluation of those circumstances might be considered over a period of years outside the period 1994 to 1997.
ronald michael white
12. Mr White adopted a proof of evidence made on 29 July 2004 (Exhibit ‘White 1’) which is reproduced as under:
1.I reside at 39 Corby Avenue West Hobart in Tasmania, and I am the Applicant in this matter.
2.I am a third generation shark fisherman and have been a fisherman for all of my adult life. My father fished for shark out of Strahan on the West Coast of Tasmania for 22 years. He started catching shark for their liver in 1938. He was a shark fisherman up and until he drowned in adverse weather conditions in 1976.
3.As a child of 5 years of age, I went on my first shark fishing trip out of Strahan with my father. When I left school in 1974 at the age of 16, I took up my first job as a shark deckhand with my father. We averaged about 40 tonnes of shark per year. In 1976 we were catching more shark than we could handle in refrigeration on the family’s 48 foot fishing vessel “Cape Sorell”, my father took out a loan and put more refrigeration and deck room on the vessel.
4.In 1976 my father and cousin were tragically taken by the sea on a fishing trip. After my father died my mother, with no income, was in debt for the upgrade of the boat, I made what for me was an easy decision to devote to [sic] my life to being a shark fisherman, and to support my mum and pay off the debts.
5.At this time I had only 2 years’ experience with my father as a deckhand and at the age of 18 years, I did not have a skipper’s ticket to run the boat. I gained the necessary qualifications and obtained a skipper’s certificate and worked the “Cape Sorell” out of Strahan for my mother. We struggled financially, at that time I did not have much idea of how to catch shark. I worked the boat for the next two years, out of Strahan.
6.During 1978, the weather was particularly adverse, so for the summer months our catches of shark were very small. I decided we would give the East Coast of Tasmania a go for the winter, I was both skipper and deckhand for the rest of the year. Unfortunately, things did not go well, I was not catching enough shark to meet the commitments on the boat and it was sold.
7.In 1979, after the boat was sold, I gained a job as skipper of a large shark vessel the “Fianne“. I was able to develop my fishing skills and improve my capacity to catch fish.
8.With the successes I had achieved with the “Fianne” I went into a working partnership in relation to the fishing vessel “Karen-El”. I worked that vessel for nearly five years however when I was returning to Strahan after four fishing trips in a row, I fell asleep at the wheel and the vessel ran onto rocks and was lost.
9.In early 1985 I purchased the fishing vessel “Menrae” a 65 foot steel vessel. To me it was the ultimate boat to catch shark, it had a large carrying capacity and it was an excellent sea boat. It was well suited for work and travel in the rough waters off the West Coast of Tasmania.
10.My catch history from the “Menrae” has been accepted by AFMA, and the figures for the years 1986 to 1993 appear in the document headed “Facts and Contentions”.
11.In March/April 1993 I had trouble with the fuel tanks on board the “Menrae” and I was working on the vessel trying to resolve that problem. It was at this time I began to feel extremely unwell, I had an unquenchable thirst. I consulted my general practitioner, I was then diagnosed as an insulin-dependant diabetic. This was devastating to me, I was in a state of shock, I had never been sick in my life.
12.I was informed that I could expect a long adjustment period to my diabetes, necessitating a complete lifestyle change, learning to give myself injections and the like. In the first week following my diagnosis, I lost approximately 10 kilograms in weight, in the weeks which followed, I lost a further 12 kilograms in weight. I felt weak, and had little energy as a result of the rapid loss of weight.
13.I struggled to adjust to my changed circumstances. I made several attempts to go back fishing but I found it almost impossible to leave the wharf, I was concerned about my illness, my distance from medical assistance if it was required, I was worried about having to inject myself with insulin and the affect working on the boat would have on my ability to make the necessary changes to my lifestyle to bring my diabetes under control.
14. In January 1994 AFMA verified catches from 1986 to 1988 and granted a permit for me to operate in the hook sector of the Southern Shark Fishery. Those records verified my catches in those years as follows:
1986 68,852 kilograms,
198789,297 kilograms, and
198895,300 kilograms.
15.In October 1994 I was admitted to the Queenstown General Hospital after a shark fishing trip. I had worked myself to the point of exhaustion. My sugar levels were very high, and I was very ill.
16.I realised that my work as a shark fisherman was causing me to become ill at sea, I was overworking, that I needed to cut back if I was to stabilise my sugar levels. My levels would go out of control due to long hours worked in arduous working conditions as a shark fisherman. Early in 1995 I decided to try and find a skipper/leading hand to work alongside me to do the heavy manual work, and do some of the long hours that were involved in shark fishing. This was particularly important to enable me to get sleep, especially while steaming to different fishing grounds, cleaning fish, putting them in brine tanks and steaming to market ports. A skipper/leading hand was employed to do most of this work for most of the 1995 fishing year.
17.In June 1995 I received a letter from the Department of Primary Industries and Fisheries (Tasmania) outlining circumstances whereby I, as a licensed fisher, could engage the services of a skipper to operate the boat. The communications are attached to the Facts and Contention documents. As I had not had a skipper on the boat during the relevant years, I was ineligible to have one assist or operate the vessel for me.
18.On a number of occasions during 1996 and 1997 I encountered fishing vessels in Tasmanian State Waters, the skippers of which I now know not to have been authorised skippers. They include:
Vessel
Skipper
Licencee
Cape Everard
Shane Dugins
Rod Casement
Gabo Bay
Name unknown, but not Rod Casement
Rod Casement
Ramalaes
Mat Morgan
Tony Grey
Susan’s Pride
Sam Steele
P Kidd
Star Fire
Various skippers not Horst Fisher
Horst Fisher
Southern Cross Star
Ray Fernley
John Stocks
Maramingo
Arno Blanc
Dick Davidson
19.In 1996 I tried to operate the vessel again myself, I became ill frequently with high sugar levels, and infections, I began to suffer financial hardship as a result of not being able to shark fish.
20.In June 1997 I became aware of a media release which advised that shark catches from 1997 would not be taken into account for the purposes of allocating quota my catch of shark in 1997 was low, compounded by damage to the brine tank and freezer in “Menrae”.
21.In late 1998, with my diabetes beginning to come under good control, I began the task of repairing the freezer and brine tank on the vessel so that I could go shark fishing again. I was feeling good about the prospects, my diabetes were under the best control it had been since I was first diagnosed.
22.Unfortunately in March 1999 while the boat was undergoing those repairs, it was destroyed by fire. This was a huge setback for me. I rang boat brokers to see if there were any shark boats for lease that I could put my licence package on, but unfortunately none were available.
23.I was without work until mid-2000 when I was able to get a job skippering a cray boat. This work only lasted a short time, the boat was sold and I was without an income again.
24My father-in-law employed me as a deckhand, this was the only job I was able to find, I felt demeaned by having to work as a deckhand, rather than as a skipper. My personal and financial circumstances forced me to take the job, and this is the job that I continue to do.
25.In September 1999, I received a package of information from AFMA detailing the introduction of quota in the Southern Shark Fishery, and that the criteria years used were January 1994 to December 1997.
26.My catch history for those years is well documented. On reading the information sent to me by AFMA, I was devastated, I became stressed, vomited constantly for days, had headaches, stomach pains and sleep was difficult. The amount of quota which was issued to me was insufficient to justify rebuilding “Menrae” following the fire. The boat was not sufficiently insured to enable it to be rebuilt, and the shark quota allocated to me did not justify me trying to resume shark fishing. The boat remained unfinished, it is [sic] sold in March 2003.
27.Over the years with my involvement in the shark fishery I have been actively involved not only as a fisherman but also at industry levels. I have been involved in sending data on the size and sex of school shark to Lauren Brown a scientist with the marine laboratories at Queenscliff in Victoria. During 1995 I had Grant West from the Division of Fisheries CSIRO take a trip with me for the purposes of his research on shark.
28.My “industry” involvement includes the following:
An industry member on SSFMAC
1991-1993 Member of SIRLIC
1992-1993 President of Tasmanian Shark Fisherman’s Association
1992-1994 I was an industry representative of Tri-State Shark Fishing Industries Steering Committee
1994 Attended Shark Conference Queenscliff. AFMA representatives including Trysh Stone were present
1995 Tagging research for CSIRO marine research
1995 Director of Tasmanian Fishing Industry Council
1996 Tagging research for Victorian Fisheries Research Institute
1997 Industry representative on Tasmanian Scale Fish Appeal Panel
1998 Attended Shark MAC as an observer
1999 Attended Hobart Allocation Advisory Panel Port meeting on allocation of quota
29.The facts set forth in “Facts and Contentions” document filed on my behalf are true.
13. Mr White also adopted (in evidence) a Statement of Facts and Contentions to which a number of documents were annexed. The Statement of Facts and Contentions was received as Exhibit “White 2” and the documents attached to it comprise:
(i)A letter from AFMA dated 1 September 1994 extending the applicant’s access to the hook sector of the SSF with respect to the vessel “Menrae”. The letter also confirms a catch history for the years 1986, 1987 and 1988.
(ii)Medical reports from Dr Montes, Dr Hoffman and Dr McGushin with respect to the applicant’s diabetes.
(iii)A letter from the Tasmanian Department of Primary Industry and Fisheries dated 8 September 1995 addressed to Tasmanian shark hook licence holders asking for nomination of authorised skippers. The letter also advised that a skipper will only be authorised if the licence holder can demonstrate, by catch returns, that the skipper operated a licence during a qualification period 1989 to 1991.
(iv)Letter from the Tasmanian Department of Primary Industries, Water and Environment addressed to the applicant dated 15 July 2002 containing an extract from the Southern Shark Independent Allocation Advisory Panel with respect to nomination of authorised skippers to conduct fishing operations on behalf of the holders of a Tasmanian Shark licence. The letter advises the applicant that by reason of him being the only operator of a Shark Licence and a vessel during a qualification period of 1 July 1994 to 30 June 1995, he was ineligible to nominate an authorised skipper.
(v)Copy of a media release issued by AFMA on 6 June 1997 foreshadowing the introduction of ITQs into the SSF with further advice that catches after 10 April 1997 would not be considered for inclusion into the ITQ allocated to an operator within the Fishery.
(vi)Copy of a document provided by the Tasmanian Department of Marine Resources dated 16 August 2002 recording a list of the licence holders who have had nominated skippers authorised. This document records the name of each licence holder and the corresponding authorised skipper.
14. In evidence Mr White said that his recording at paragraph 18 of his proof of evidence of persons he knew had not been authorised was based on observations that he had made in Tasmanian State waters and elsewhere. He said that he had observed the vessels and the unauthorised skippers West of King Island and on the West Coast of Tasmania. He had also observed the vessel “Ramalaes” at port in Stanley, the vessels “Cape Everard”, “Gabo Bay”, “Southern Cross Star” and “Maramingo” at port in Lakes Entrance in Victoria and the vessel “Susan’s Pride” at port at Dover in Tasmania.
15. With respect to the vessels “Cape Everard” and “Gabo Bay”, Mr White said that he was aware that the person Rod Casement was the licensee of those vessels but he became aware that the person Shane Dugins had been the skipper of those vessels. Mr White said that he learnt of Dugins being the skipper by communication he heard over a two-way radio whilst at sea. Mr White said that he had obtained the information contained within paragraph 18 from an officer from the Tasmanian State Fisheries office. Additionally he relied on a submission made by Mr Casement to the SSF Independent Allocation Review Panel (Exhibit White 3) where at paragraph 12.6, Mr Casement recorded the following
The “Cape Everard” employs 2 crew. Each crew has an appropriately qualified skipper and at least 2 deck hands. A full time net worker is also employed for shore based net repairs. All of these arrangements rely on being able to harvest the quota that has been allocated. A reallocation will mean a reduced operating capacity and reduced employment.
16. In a submission completed by Mr Dugins, which also forms part of the same exhibit, he recorded that he had held a Master Class 5 Licence for 16 years and for 15 of those 16 years he had been engaged as a skipper on vessels operated by Mr Casement and two other named persons. Additionally he recorded that he had “been in the employ of Rodney Casement as a skipper on his vessels for well in excess of 10 years”.
17. Mr White said in evidence that these documents either directly, or by inference, permit a finding that the licensee of those vessels, Mr Casement, had not always been the skipper and, or, that the person Dugins had been the skipper of those vessels but had not been authorised. In reliance therefore upon his proof of evidence and paragraphs 22 to 25 inclusive of the Statement of Facts and Contentions, he said that AFMA was aware that only authorised skippers could obtain catches for licensees, that they were aware that persons who were not authorised were employed as skippers of vessels yet during the period 1994 to 1997 he (Mr White) had been refused permission to have a skipper. Consequently there was a reduction in those years of his catch.
18. With respect to catch history, Mr White provided a more expansive record in his notice of his Statement of Facts and Contentions. The summary of catch history against corresponding year, with respect to his catch of shark, is as follows:
Year
Kg
1986
69,859
1987
89,297
1988
95,300
1989
93,472
1990
65,200
1991
93,850
1992
95,900
1993
42,419
1994
33,410
1995
92,894
1996
24,552
1997
2,350
19. Mr White referred to paragraphs 25 and 26 of his proof of evidence and reaffirmed the reaction that he suffered when he learnt of the decision made to set quota against the best three years of catch between January 1994 and December 1997. In addition to the symptoms of illness then endured, Mr White said that he was in a state of shock although he said that he was told by other persons that illness during the qualifying period would be taken into account in any application for exceptional circumstances.
20. Mr White was then taken to a claim he made on 6 September 1999 with respect to his shark catch history. Mr White acknowledged that part of the document was in error because at page 270 he declared that 100% of his shark catch was from the SSF being a Commonwealth fishery. Mr White said that he understood that the form required him to declare his shark catch from Commonwealth waters only and therefore declared that 100% of his shark catch was in the SSF. He acknowledged that in the years 1994 to 1997 he did catch shark in Tasmanian waters and estimated that 50% of his total catch would have been from Commonwealth waters and 50% would have been from State waters.
21. Mr White acknowledged that his returns of shark catch between 1986 and 1997 as referred to earlier, do not distinguish between catches of shark between Commonwealth or Tasmanian waters. He therefore produced documents which distinguished the location of the catch. Exhibit 4 is a summary prepared by him of his catch from Commonwealth and Tasmanian waters between September 1994 and August 1997. [Deleted pursuant to Order made on 4 August 2004 – refer paragraph 5 earlier].
22. Mr White said that between December 1994 and August 1997, he had a total shark catch of [Deleted pursuant to Order made on 4 August 2004 – refer paragraph 5 earlier]. He said that in this period the records held by AFMA indicate that he had a total catch of 153,196kg. He said the difference therefore between the total catch as understood by AFMA, and the total catch as verified by his documents, can be explained by him having misplaced some fishing returns or log books.
23. Mr White said that the division of catch, as outlined above, between Commonwealth and Tasmanian waters would equate with his returns in other years. He said from discussions he had with other fishers, he had learnt that they had also had a return as above from shark fishing of about the same proportion.
24. Mr White was asked again to explain the contents of his application of 6 September 1999 (page 270) and said that he thought that the SSF included State waters and therefore did not distinguish between shark caught from Commonwealth and State waters in that form.
25. In cross-examination Mr White confirmed that he was diagnosed with diabetes in 1993. He said that immediately prior to the diagnosis he suffered from extreme thirst whilst he was in port. He recalled that he was cleaning his fuel tanks and thought that he had been exposed to or affected by diesel fumes. Thereafter he suffered from lethargy, was unable to work and was prescribed medication. He recalled the doctors found it difficult to stabilise his diabetes because of extreme variations in sugar levels. He said when his sugar level was high he suffered from lethargy but when it was low he would shake and was unable to control himself. Significantly, Mr White said that these symptoms prevented him from working as a fisher. At the present time he continues to have treatment for diabetes and in effect he was unable to fish for most of 1994. He did engage in fishing in 1995 but enlisted and employed other skippers for most of the year. Mr White recalled that when he did fish in 1995 he had a recurring stomach “bug” and suffered from blurred vision to the extent that he was unable to read his global positioning system (GPS) nor could he observe buoys. He said he lost a great deal of weight and his blurred vision was his “major problem”.
26. Mr White was then taken to the pages from his log book at Exhibit White 5 and White 5A (being the source material for the spreadsheet found at Exhibit White 4). Mr White said that he travelled on all of the trips recorded in the log books and he did not engage a skipper on any of those trips. [Deleted pursuant to Order made on 4 August 2004 – refer paragraph 5 earlier].
27. Mr White also agreed – having regard to the contents of the medical reports – that in 1997 he suffered from chest an upper respiratory tract infections because of his diabetes and said that his immune system was then “low”. He understood that he also suffered from diabetic neuropathy which then produced intense pain and symptoms that he described as “horrific burning”. That condition is now controlled by medication. Mr White also suffered from cellulitis of his heels which he said originated from crustacean poisoning and foot infections.
28. Mr White was then taken by Mr Reed to his shark catch history forming part of his claim at T30, page 269 and 270. Mr White agreed that the form was completed by him, was in his handwriting and had been signed by him. He said that his wife Sharon usually completes all paperwork associated with his fishing operations but at the time that form had been completed his wife was away. Mr White agreed that his claim of fishing for 100% in the SSF was incorrect and said that he understood that Tasmanian waters came within the Commonwealth SSF. He said that he understood that the SSF and the Tasmanian fishery had a “complimentary management” and he recalled being confused when the form was completed. He said that he also held two licences to catch shark, both issued by Commonwealth and State agencies but remained adamant – despite leaving the Tasmanian shark fishery section of the form blank – that he did fish in Tasmanian waters and did catch shark in those waters.
29. At page 271 of the T-documents – being the fourth page of the claim form – Mr White was asked to complete a section describing the “documents used to justify claim”. He recorded his verifiable primary documents as landing documents, invoices and receipts and his supporting documents being State and Commonwealth log books. The form contains a section where “Other” supporting documents are to be described. In his own handwriting, Mr White recorded “* exceptional circumstances. Unfair and inequitable gear restrictions 1994/97 period”. Mr White said that he referred to what he understood to be unfair and inequitable gear restrictions because it was his belief that hook fishermen were at a disadvantage compared to net fishermen. When he was asked why he did not then record that unauthorised persons were working as skippers of boats and had been catching shark, Mr White said that he had not then researched that issue but said that he “knew I would end up here” later. In another part of that form where he has been asked to describe the “Other” supporting documents, Mr White recorded “personal log book 1994/and 1996 catches are down due to ill health and will be supplying documents under exceptional circumstances”.
30. Mr Reed then examined the applicant with respect to the entries in the spreadsheet at White 4 and the log books at White 5. [Deleted pursuant to Order made on 4 August 2004 – refer paragraph 5 earlier].
31. [Deleted pursuant to Order made on 4 August 2004 – refer paragraph 5 earlier].
32. Mr White said that he completed his returns for the 1994, 1995, and 1996 years in the fishing return at T30 from documented information available to him comprising his log books and his dockets. He said he did not rely on log books only because he understood that fishing authorities had a mistrust of the contents of log books.
33. When Mr White was re-examined concerning his knowledge of what constituted Commonwealth and State waters – particularly after the introduction of the new grid identification practice [Deleted pursuant to Order made on 4 August 2004 – refer paragraph 5 earlier].
34. In an attempt to identify what he regarded as being the fishing returns from Commonwealth and State waters, [Deleted pursuant to Order made on 4 August 2004 – refer paragraph 5 earlier].
margot sachse
35. Ms Sachse is presently the Project Manager of the Southern and Eastern Scale Fish and Shark Fishery (“SESFSF”). She has previously held a number of management positions within AFMA and has a long history in the fishing industry. She lodged a proof of evidence which summarised the history of the development of the SSF, the introduction of ITQ’s and TAC’s, the assessment processes by AFMA from time to time, the consultation with industry and governments, and the process of verification of catch.
36. The proof of evidence also contained specific reference to the application brought by Mr White and it is found at paragraphs 47 to 56 which is reproduced as follows:
The applicant’s case
47.The applicant initially claimed in his application to the AAT that his allocation was unsatisfactory. This arose from exceptional circumstances arising from his health.
48.In 1994, White was diagnosed with insulin dependent diabetes. This affected his ability to fish in the period from 1994 to 1997. He sought a skipper for his boat and a skipper worked alongside White from 1995 to 1996.
49.He contends that this period does not reflect his relative economic position in the fishery
Respondent’s case
Health issues
50.The delegate noted that White had a permanent condition which would continue to affect his health. He had been receiving treatment for it from 1994 and would continue to require treatment for the rest of his life. The delegate found that his health condition affected his relative economic condition.
51.It was not necessary to go further back that 1994 because one additional year had been included in the assessment period and this was sufficient to allow for a short term illness.
52.It was possible for White to employ a skipper and he did this for part of the time. Whilst it is accepted that suitable skippers are not readily found, this is in part an economic issue within the control of the applicant. Tasmanian regulations dealing with the use of a skipper did not prohibit use of a skipper, but attributed catches under a skipper to the skipper.
53.Medical advice proffered by the applicant shows that he is fit to fish. Since 1998, he has chosen to fish in the Rock lobster fishery rather than the shark fishery.
Alternative catch history years
54.The applicant has not claimed that alternative years should be used.
Effect of decision on TAC and ITQ
55.To allow imputed catch for any year based upon catch in other years raises significant equity concerns. Other operators would also benefit from this method of assessment.
56.The quantum of the Total Allowable Catch is not in issue in these proceedings and is based upon assessments of fish stock and effort. An increase in quota allocated to the applicant, or to any other operator for that matter, will necessarily result in a reduction in quota allocated to all other operators in the fishery. The Total Allowable Catch would not be affected, but the proportion of each fisher’s quota would reduce because of the introduction of additional allocation to the applicant. The TAC for gummy shark was 2,074.17 tonnes carcass weight for 2001 [T28, page 263]. It is this amount of which the Applicant has a share and his increased allocation would reduce the amount the other 196 fishers would have in the TAC.
37. In evidence Ms Sachse explained that AFMA had decided to introduce a process of “Units” with respect to the ITQ set in the SSF. This part of the evidence became relevant because of queries raised earlier in the hearing where the notification of quota entitlement issued to Mr White (for example T45, page 367) records the Units of catch allocated to him whereas separately (for example T45, page 366) there is an allocation of quota. Ms Sachse explained that a “Unit” is a proportion of the TAC that is allocated to each fisher. She said that when a TAC in the SSF is either increased or decreased in each fishing season, the proportion of quota allocated to a fisher remains the same by a corresponding kilogram value. She said that the weight of shark is set against “truncked” weight being a shark which is beheaded and gutted but with its fins intact. This process she said ensures that fishers receive the same proportion of a TAC from year to year.
38. With respect to the current stock of school shark, she said that it is currently over fished and in recent years the “harvest strategy” of AFMA is to decrease the allocated quota for that species. She said the reduction in quota will hope to ensure that by 2011 the stock of school shark will be at the same level as it was at 1996.
39. Ms Sachse said that the stock of gummy shark is currently at sustainable levels although it was decided in 2002 by AFMA to reduce the quota of gummy shark by about 23 per cent.
40. With respect to satisfying AFMA of a catch history (so as to permit allocation of quota) Ms Sachse said that entry into a fishery (and the consequent allocation of quota) was initially established from records in a fisher’s log book. Later, when fisheries were expanded, the allocation of quota to a fisher was on the basis of a verified catch history which was established by secondary documents mainly being the production of dockets from fish processors and other sources.
41. In cross-examination by Mr Crisp, Ms Sachse was asked to consider the introduction of ITQs under a single Commonwealth jurisdiction for school and gummy shark following a proposal endorsed by the Ministerial Council in July 1997. Ms Sachse agreed (refer also paragraph 20 of her Proof of Evidence) that a Standing Committee of Fisheries and Aquaculture – comprising agencies of Tasmania, Victoria and South Australia – devised a proposal for introduction of ITQ management under single jurisdiction for school and gummy shark in the SSF. Eventually the Commonwealth and the States of South Australia, Tasmania and Victoria endorsed a Memorandum of Understanding in April 1999. The effect of this arrangement was that the Commonwealth’s SSF incorporated coastal waters off Tasmania, South Australia and Victoria and included fishers who were State licensed to catch school and gummy shark.
42. Ms Sachse said that she was aware that Tasmanian State licensed fishers could only engage authorised skippers. She said that AFMA did not consider the issue of whether the skipper of a vessel in Tasmanian waters was authorised (Transcript page 28). She said that AFMA did not have “any information” as to who caught the fish, but when considering the allocation of quota, AFMA relied on catch history. She said that “if the fishing permit was valid we considered the fish to be legally taken”. Ms Sachse again confirmed that it was her understanding that AFMA did not concern itself with whether the fish were caught by an authorised skipper (Transcript page 31).
43. With reference to the Proof of Evidence of Mr White concerning vessels which did not have authorised skippers, Ms Sachse said that she was aware that this assertion had been made and she did not dispute it. She acknowledged that a request had been made of AFMA to supply information concerning the catch that had been considered in Tasmanian waters by boats that did not have authorised skippers. She said that information had not been provided “due to privacy issues” (Transcript page 32). When asked to supply information as to catch without identifying persons by name, Ms Sachse said that she had such information but it was not presently available to her. Ms Sachse agreed that log books and some other documents might identify the skipper (thereby permitting identification of whether the skipper was authorised) but for the purposes of allocating quota, based on catch returns between 1994 and 1997, AFMA did not concern itself with where shark was caught. She acknowledged that the nautical grids then in operation caused difficulty in ascertaining whether fish were caught either inside or outside the 3 nautical mile limit (thereby designating Tasmanian waters) and in those circumstances fishermen were asked to disclose where they took shark on a percentage basis between Commonwealth and State waters. However she agreed that for the purposes of catch returns between 1994 and 1997, AFMA was unable to identify whether returns of catch were from State or Commonwealth waters. For the purposes of Mr White, Ms Sachse agreed “it didn’t matter where he caught the fish”.
44. Mr Crisp then focussed his attention on the catch returns of Mr White as disclosed in his Proof of Evidence. Ms Sachse said that she did not dispute the applicant’s returns as disclosed for the years 1989 to 1993, indeed when pressed she said that she did not dispute his returns for the years 1994, 1995 and 1996. Ms Sachse agreed that with the returns of Mr White as disclosed, he would be regarded as being “a high liner” and the quota allocated to him was “on a par” with others that she would regard as high liners. There followed considerable discussion between Mr Crisp and Ms Sachse as to the Units allocated to Mr White, the variation between the returns of Mr White and the returns as regarded by Ms Stone (the delegate who made the reviewable decision) and other issues as to verification of returns and conversion factors adopted by AFMA (when converting catch history into allocated Units). The principle issue that concerned Mr Crisp was the allocation to his client in 2002 of quota for gummy and school shark compared (for example) to the Unit allocation in 2001. For example, the notification for the 2001 season to Mr White was 2346 Units of gummy shark and 16,561 Units of school shark (T-documents page 275). On 24 April 2002 the quota allocated of gummy shark was 2100.27 and 6559.98 of school shark. Ms Sachse explained that Mr White was regarded as being a very good school shark fisherman – particularly having regard to his returns for 1995 – however shark stocks were regarded as being “in strife” and when TACs were introduced and an allocation formula was devised and applied, 3kg of catch history equated to .4 of a Unit. In previous years 1 Unit as allocated was the equivalent of 1kg of catch. However from 2000 when a TAC was introduced, an allocation factor was devised to apportion a share of the TAC amongst the fishers who had applied for quota allocation. The allocation process did not exist before 2000 because a TAC did not exist. Ms Sachse explained that in 2000, the catch verification process also commenced. The allocation to applicant fishers therefore proceeded upon the basis of verified catch, number of fishers in the fishery and the TAC as set by the AFMA Board.
45. When Ms Sachse was asked whether the objective of the allocation process was to create equity between fishers, having regard to their catch and the TAC, Ms Sachse said the objective was to “maintain their relative economic position”. She said that in so far as school shark was concerned, she believed that the applicant’s relative economic position had been maintained. When asked whether the applicant’s relative economic position for the years 1992 to 1995 was better than at the present time, Ms Sachse said “possibly”.
46. When Mr Crisp then asked the applicant some questions concerning the applicant’s diabetes and the effect upon him with respect to his ability to engage in fishing, considerable objection was taken by Mr Reed. After a short adjournment, Mr Reed confirmed that the only evidence with respect to the applicant’s diabetes would be from the applicant himself and from the contents of his medical reports. After some considerable (and robust) discussion between Counsel, Mr Reed, on behalf of AFMA, gave the following indication (refer transcript)
. . . the only evidence that you will have on the effect of the disease upon his fishing operation is that which has come from Mr White and is in the document. It is not AFMA’s intention to present any other evidence and if it were we would not have drawn our Statement of Facts and Contentions the way we had and we would have given some warning to Mr Crisp because we said at the commencement of this case we only had one witness . . .
47. In terms of the accuracy of a fisher’s catch as determined by his documents, Ms Sachse agreed that there were cases considered by AFMA where verifiable documents did not exist or could not be produced. Ms Sachse agreed that in the application of “Fernley” (currently before the AAT), it involved a review of an allocation without reference to verifiable documents in the years 1994 to 1997. Ms Sachse agreed that other applications issued by Mr Zalup and Mr Walton also involved allocation of quota without verifiable documents. In those latter cases however Ms Sachse said that the quota eventually allocated to those persons followed decisions made by the AAT because “the AAT gave us a starting point of what they believed his catch history was”.
48. Mr Crisp then examined Ms Sachse with respect to the Memorandum of Understanding between the Commonwealth, AFMA and the States of South Australia, Tasmania and Victoria with respect to the shark fishery relevant to the waters of South Australia, Tasmania and Victoria (Exhibit White 15). Ms Sachse was aware that at paragraph 36 of that Agreement, persons who held a dual State/Commonwealth Shark Licence would continue to be allowed access to both waters. Having regard to the dual licence held by Mr White, Ms Sachse agreed that any quota allocated to him applies with respect to fish caught in either waters. Ms Sachse said that the effect of the Memorandum of Understanding “was to provide confidence that we were going to – like it was basically – it was to guarantee the conditions when the States handed jurisdiction across to the Commonwealth and this is like – it is not – it’s a contract so to speak so its not like MOUs are not legal documents . . .”. In effect Ms Sachse agreed that with respect to dual licence holders, allocation of quota would be dependent on catch irrespective of where it was caught (Transcript page 60).
49. Ms Sachse said that the forms referred to in the applicant’s evidence in chief (where he recorded that his catch was 100 per cent in Commonwealth waters) asked fishers to distinguish between State and Commonwealth waters in anticipation of an allocation formula later being devised. Ms Sachse agreed that quotas subsequently allocated to Mr White, had regard to his disclosure of 100 per cent of catch in Commonwealth waters. Whilst acknowledging the evidence of Mr White that 50 per cent of his fish had been caught in State waters and 50 per cent being caught in Commonwealth waters, she said it was not until she received his Proof of Evidence, approximately a week before the commencement of the hearing, that she understood that he would assert that 100 per cent catch in Commonwealth waters was incorrect.
50. Ms Sachse agreed that having regard to evidence heard in these proceedings, any finding made by the Tribunal with respect to an apportionment of catch of the applicant between State and Commonwealth waters, may be the subject of consideration in future allocation of quota. Additionally, AFMA may take account of evidence heard with respect to the catch of skippers in State waters who were not authorised. Ms Sachse said that she will be “taking this matter back to senior management . . . bring it to their attention”. Nonetheless she said that the allocation process of 1999/2000 was not “fundamentally flawed”.
51. Ms Sachse was then taken to her Proof of Evidence (part of which is reproduced earlier). She said that paragraphs 50 to 53 were largely a recording of the findings made by Ms Stone, the reconsideration delegate. In so far as paragraph 53 is concerned, Ms Sachse agreed that the reference to the applicant being able to fish from 1998 and his choice to catch rock lobster rather than shark was incorrect having regard to a medical report found at page 357 of the T-documents. That report is dated 3 December 2001 from Dr Montes who has recorded – at that date – in part “he is now fit enough to commence shark fishing”. Ms Sachse agreed that in the circumstances, paragraph 53 of her Proof of Evidence should be amended accordingly.
submissions
52. Subsequent to the conclusion of the hearing, the representatives in each of the three applications simultaneously heard under review, lodged written submissions. Mr Reed on behalf of AFMA in all three applications lodged submissions which applied generally and concluded by written submissions which applied specifically to each of the three applications.
53. Generally it was submitted that the Tribunal should have regard to s6 of the Fisheries Administration Act 1991 (“the Administration Act”) with respect to the functions and objectives of AFMA and should have regard also to s3 of the Act with respect to the functions and objectives of AFMA. To the extent that the expression “economic efficiency” is referred to in both sections of the foregoing legislation, it was submitted (by reference to Bannister Quest Pty Ltd v Australian Fisheries Management Authority Federal Court, 14 August 1997, 819/1997)) that this concept should be interpreted as an “increase in the aggregate profitability of the whole body of operators in a particular fishery that is, maximising total profit. Relative efficiency of individual operators and social and equity impacts have been held to have been extraneous to maximising economic efficiency”. Additionally it was submitted that any variation in the allocation of quota to a fisher will have an affect on other members of the SSF and those consequences should be taken into account.
54. Whilst it was submitted that there was no direct challenge by either applicant to AFMA policies, it was submitted that there were relevant policies which should be considered with respect to the allocation of quota, namely, the report of 15 July 1999 with respect to the apportionment and allocation of school and gummy shark (T19), the report of the Independent Allocation Review Panel of the SSF of October 2003, the report entitled “Allocation of Fishing Concessions Where Management Arrangements Change” (FMP 8) issued in September 1997 (T17) and the Catch Verification Policy of AFMA found at T24.
55. It was submitted that in all applications before the Tribunal neither applicant had established any cogent reason to warrant any departure from the above policies and in the interests of consistent decision making, the policies should be applied.
56. The quota allocation policy of 15 July 1999 was submitted as not offending the relative economic position of a fisher when the best three of four years between 1994 and 1997 are considered. It was submitted that such a period would take account of “personal vicissitudes” and the risk of distortion in catch history would be lessened.
57. The Independent Allocation Review Panel report of October 2003 was advanced in support of AFMA’s case because it was submitted that the economic position of fishers in the Commonwealth sector of the SSF had a permit which attracted a value based on entitlement to fish which in turn was based on catch history.
58. FMP8 was advanced because it was submitted that this policy honoured adherence to applicable legislation in the event of management changes in a Fishery and the minimisation of differential economic impact upon allocation of quota. That stated, it was conceded, that “it may not be possible to design an allocation system with absolutely no impact on the relative economic position of individual operators”.
59. The Catch Verification Policy of AFMA extends to inspection of both primary and secondary documents. It is the policy of AFMA that log books alone are not appropriate to establish catch history and a number of examples were recited in the written submissions, based on the practices of other fishers, suggesting that log books – in the absence of other documentation – were unreliable as sources of information and did not always reflect the true extent of catch.
60. The expression “exceptional circumstances” was the subject of submissions by Mr Reed. It was submitted that AFMA does not have an “exceptional circumstances” policy and does not define the phrase in its policy documents. It was submitted that this expression has been used by fishers to argue against the application of policy and has a reference generically in some AFMA documents. It was acknowledged that it has been the subject of interpretation by the Tribunal in other decisions. Mr Reed drew attention to the use by AFMA officers of other expressions such as “special circumstances” and “cogent reasons” and submitted that on occasions the expressions “exceptional circumstances”, “special circumstances” and “cogent reasons” have been used “interchangeably” in the application of the discretion available to decision makers when not applying policy. Mr Reed referred to the decision of Brennan J in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 and to the decision of the Tribunal in Re Skoljarev and Australian Fisheries Management Authority (1995) 21 AAR 305 and Skoljarev v Australian Fisheries Management Authority, (1996) 22 AAR 331. It was submitted that there has not been any consistent interpretation of either of those three expressions and a number of Tribunal decisions were recited. On balance it was submitted that the decision of Brennan J, in Drake, should be followed (as it was in Skoljarev).
61. Mr Reed submitted that “in addressing the question of cogent reasons, the correct questions in respect of an application before the Tribunal” were whether by the consideration of the best three catches between 1994 and 1997, any distortion to relative economic position was caused and whether the applicants’ circumstances amounts to “cogent reasons” or “special circumstances” for not strictly applying the quota allocation policy.
62. It was submitted that on the occasions where AFMA had found “cogent reasons” to depart from the allocation policy, it did so by substituting one or more years from the qualifying period set up by the Panel and those substituted years were chosen as close to the qualifying period as was possible, in order to accurately represent the applicant’s “relative economic position” between 1994 and 1997 and in order to minimise any differential impact between fishers resulting from substitution.
63. It was submitted that substitution of years in the 1970’s or 1980’s would be inappropriate because of the different state of the Fishery compared to the period 1994 to 1997 and the decline in school shark stock. Additionally it was submitted that use of years after 1997 was inappropriate because warnings had previously been given to fishers of changed policy. It was submitted that none of the applicants before the Tribunal has established any “cogent reasons” to cause a departure from the Catch Verification Policy and on that basis, the Catch Verification Policy should be applied in each case.
64. With respect to the application brought by Mr White, it was submitted that he had predominately been a school shark fisherman but that species had become progressively scarce from the late 1980’s to the early 1990’s. It was submitted that an interpretation of the applicant’s catch returns indicated a reduction in school shark catch but those returns arose by reason of “long term health problems”, the decision of the applicant to fish for scallops and the decline in fish stock. None of those circumstances were submitted as being exceptional.
65. Whilst it was conceded that the Tribunal was not bound to follow the Catch Verification Policy, it was submitted that the figures advanced by the applicant to support his catch history were unsound and the absence of dispute by Ms Sachse did not elevate those figures to a status of verification.
66. Whilst it was accepted that the applicant did suffer from diabetes which affected his capacity to work, it was submitted that the applicant’s evidence with respect to the apportionment of catch between Commonwealth and State waters was unsafe and unsound and should not be followed. It was submitted that the applicant had changed his evidence with respect to fishing locations and his explanation for recording 100 per cent catch in Commonwealth waters at T30 was not adequately explained and his recording of catch location should not be found to be accurate. It was submitted that the only evidence advanced by Mr White of a disadvantage was his inability to engage an authorised skipper (having regard to Tasmanian legislation) but that of itself was submitted as not amounting to an exceptional circumstance.
67. It was acknowledged that Ms Sachse had given evidence that Mr White was a “high line fisherman” but compared to others his “relative economic position” was unaltered, largely because of the depletion of the stock of school shark.
68. The evidence of the applicant with respect to other licence holders using unauthorised skippers was submitted by Mr Reed as being unsafe and should not be followed. It was submitted that there was no evidence that the licence holders used unauthorised skippers on boats in State waters, where shark had been caught and claimed and been accepted as part of verified catch history. It was also noted that the applicant did not refer to the use of unauthorised skippers in the form completed by him at T30, but rather he referred to other circumstances.
69. With respect to the applicant’s health it was put in the alternative that either the applicant’s diabetes had little impact on his ability to fish other than in the 1994 year or, it was an illness of a “permanent effect” similar to that dealt with by the Tribunal in Re Zalups and Australian Fisheries Management Authority [2003] AATA 908.
70. These propositions were put on the basis that whilst there was some affect in 1994 the best three years in the four year period between 1994 and 1997 would adequately compensate the applicant. It was submitted that in 1995 the applicant “had the ability to fish at the usual rates” and whilst in 1996 and 1997 there were occasions when the applicant was unable to fish, he then chose to fish for scallops which was on one view, inconsistent with ill health or his complaint of being unable to engage a statutory skipper.
71. In the alternative, on the basis that the diabetes suffered by Mr White is of long standing, quota should not be allocated because – having regard to the nature of the illness – Mr White would be unable to engage in shark fishing.
72. Mr Crisp on behalf of the applicant lodged written submissions. It was submitted that most of the evidence of Mr White was uncontested and the issue of significance in dispute seemed to have been whether Mr White caught shark in Tasmanian waters between 1994 and 1997 inclusive.
73. It was submitted that Mr White should be regarded as a truthful witness and he had erred in completing a fishing return disclosing that 100% of his catch was from Commonwealth waters. It should be noted he submitted that Ms Sachse in evidence said that
(i)at that time AFMA did not regard it as significant whether fish was caught in State or Commonwealth waters,
(ii)that AFMA by its letter of 6 September 1999 referred to “an expanded Southern Shark Fishery” (which included the former SSF together with State waters),
(iii)that allocation within the SSF had regard to concession holders in the expanded SSF,
(iv)the TAC referred to the expanded SSF and
(v)verified catch history of school and gummy shark was considered in the apportionment of the TAC in the expanded SSF.
Further to the above, AFMA regarded the expanded SSF as the “Australian fishing zone adjacent to and including the coastal waters off Tasmania” (T37, page 339).
74. Accordingly it was submitted that it was unfair on the part of the respondent to attack the credit of Mr White, having regard to his evidence concerning the apportionment by him of shark caught in Commonwealth and Tasmanian waters.
75. In the event that the respondent were to assert that Mr White was able to work as a shark fisherman during the qualifying period, Mr Crisp referred to the medical report at T42, page 357 which recorded (at 3 December 2001) that his client was “now fit to return to work as a shark fisher”. It followed, that Mr White was not fit to catch shark after diagnosis in 1993 until 3 December 2001.
76. In the context of the vicissitudes of a fisher’s life, Mr Crisp noted that the Panel had been asked pursuant to terms of reference to consider whether in the allocation of quotas any exceptional circumstances should be taken into account. It therefore followed that AFMA understood that a distinction existed between the allocation of quota and exceptional circumstances. It was noted that the Panel in its report referred to the vicissitudes of a fisher’s life and referred to illness, loss or damage to gear or vessel which may affect aggregate catch and therefore distort a fisher’s economic position. It followed, upon these submissions, that both the Panel and AFMA accepted a distinction between allocation of quota and exceptional circumstances. It was also submitted that AFMA accepted the recommendations of the Panel that allocation decisions would be the subject of review of whether a fisher could prove exceptional circumstances in any contest as to the quota allocated. Indeed Mr Crisp referred to the letter of AFMA of 6 September 1999 which specifically recorded that persons who were of the opinion that catch history had been affected by exceptional circumstances would have the opportunity to appeal.
77. Accordingly it was submitted that we should consider whether exceptional circumstances exist in the present case unfettered by the examples of circumstances considered by the Panel in its analysis of the personal vicissitudes of a fisher.
78. Specifically with respect to the exceptional circumstances attaching to Mr White, Mr Crisp submitted that it was not in dispute that his client was ill and substantially unable to work as a shark fisherman from April 1993 until December 2001. Whilst there was some work undertaken by Mr White as a deckhand in this period, to all intents he did not fish for shark after March 1999 when his vessel “Menrae” was destroyed.
79. Mr Crisp submitted his client’s catch was verified between 1986 and 1988 inclusive and his client’s catch between 1989 and 1993 was not disputed by AFMA. It was noted that Ms Sachse said in evidence that she regarded Mr White as being a “high liner” and it therefore followed that he was regarded by AFMA as having a significant standing amongst top fishers in the SSF. It was submitted that the reduced catch of 1993 (compared to previous years) was consistent with the onset of the applicant’s diabetes thereby having reduced his capacity to work and his catch in the years between 1994 and 1997 was also a reflection of his reduced capacity by reason of illness, save for the 1995 year when he retained a skipper and a deckhand.
80. It therefore followed upon these submissions that the effect of the applicant’s illness in 1993 had a considerable impact on his ability to catch shark during the assessment period. It followed that there were exceptional circumstances attaching to Mr White such that it would be unfair to have regard only to his catch history during the assessment period.
81. Another feature of the applicant’s case, being an exceptional circumstance, was the policy of the Tasmanian Fishing Authorities as to authorised skippers. It was submitted that there was evidence of other persons using skippers which had not been authorised who had considerable catch histories. It was noted that Ms Sachse had acknowledged in her evidence that no attention had been given to the catch from skippers that were not authorised and she would report this to other officers of AFMA. It therefore followed upon Mr Crisp’s submissions that AFMA did not have sufficient regard to the issue of a “valid concession” and persons who did not have authorised skippers had catch credited to them whilst not holding a valid concession. The catch history he submitted, had been taken into account in allocating quota to those persons. Accordingly Mr White, by reason of the policies of the Tasmanian Fishing authorities, was unable to catch fish in order to demonstrate a catch history when others in the SF had caught fish with unauthorised skippers and had the benefit of a catch history credited to them in the allocation of quota.
82. In the event that it was found that the applicant’s illness and the inability to engage a skipper did not constitute exceptional circumstances, it was submitted that both of those features in combination constituted an exceptional circumstance. That is to say if it were accepted that Mr White was unable to fish because of his illness he was unable to maintain his economic position by engaging a skipper.
83. Mr Crisp referred to the evidence concerning the estimated return per kilogram of shark. Having regard to the applicant’s return from fishing in 1995, he would have earned in excess of $1.9M whereas his earnings for the best three years during the assessment period amounted to slightly more than $1M. The net difference of approximately $900,000 represented an average difference of $300,000 per year and it therefore followed that the applicant’s relative economic position was considerably reduced which arose from his exceptional circumstances.
84. In the submissions as to the years that should be considered in assessing quota allocation, Mr Crisp submitted that if the evidence of Ms Sachse was preferred, catch years prior to 1994 should be considered because they were years closest to the four years of the assessment period. The prior years most proximate to the assessment period were 1991 and 1992 and in the event that the best of the three years between 1991 and 1995 were accepted, the three best years would be 1991, 1992 and 1995.
85. Mr Crisp concluded his submissions with calculations as to the proportion of catch between school and gummy shark achieved by Mr White and noted that the AFMA Board (T21, paragraph 234) recorded that the allocation of an ITQ to concession holders will be proportional to relative aggregate catch.
86. As to the meaning of the expression “exceptional circumstances”, Mr Crisp referred to the Tribunal decisions of Re Zalups and Australian Fisheries Management Authority [2003] AATA 908 and Re Walton and Australian Fisheries Management Authority [2002] AATA 184.
87. In his written submissions in reply, Mr Reed recorded that the catch returns submitted by Mr White were not verified and the calculations undertaken by Mr Crisp in his written submissions were not based on evidence. It was submitted that there was “too much guess work” in the calculations with respect to anticipated profit.
88. With respect to the submissions concerning the use of unauthorised skippers by other concession holders, it was submitted that the catches of those persons cannot be compared to Mr White because those persons operated under different permit conditions, used different gear, targeted gummy shark and some identified persons held a number of permits. The evidence of Ms Sachse with respect to the applicant being a high liner should be confined only to a similar class of fisherman being a permit holder of 2000 hooks targeting school shark only.
89. In reply to the submissions of the respondent, Mr Crisp submitted that the only policy document of relevance in this review is the report of the Panel. The report of the Independent Allocation Review Panel for the SSF published in October 2003, was submitted as not having relevance because it was published in the light of other Tribunal decisions in Re Fischer and Australian Fisheries Management Authority [2002] AATA 857 and Re Graham and Australian Fisheries Management Authority [2002] AATA 862 which it was submitted were irrelevant to the current review. It was submitted that the report of the Panel should be followed because whilst recommending that the best three of the four years between 1994 and 1997 should be followed, it referred to the relevance of catch history, catch verification and exceptional circumstances.
90. It was submitted that catch verification was not confined only to documents produced by a fisher but it had regard also to catch history and therefore the documents made available by Mr White, together with his catch history, and the reduction in fishing in years subsequent to his illness, indicated that his circumstances have been exceptional and a greater allocation of quota should be allowed to him.
91. It was submitted that the applicant’s evidence with respect to fishing in Tasmanian waters was clear and it should be found, as a fact, [Deleted pursuant to Order made on 4 August 2004 – refer paragraph 5 earlier]. It was acknowledged that the applicant did pursue fishing for scallops and rock lobster for a period of time but because it was less arduous than fishing for shark prior to December 2001 from which time his doctors certified him as fit to return to shark fishing.
92. It was submitted that AFMA have not attached significance to the use by concession holders of unauthorised skippers and have allowed catch history from those persons to be brought into account when allocating quota. When attempts were made to identify from AFMA the extent of catch by such unauthorised persons, AFMA chose to avoid disclosure of relevant catch histories citing “privacy” factors.
exceptional circumstances
93. On 6 June 1997 AFMA issued a Media Release notifying operators in the SSF against increasing catches following a recommendation made at a SharkMAC meeting in April recommending in principal that a system of ITQs be implemented.
94. AFMA then decided to appoint the Panel to provide recommendations to AFMA concerning the apportionment of a TAC of school and gummy shark and a formula for the allocation of ITQs for school and gummy shark in the SSF. AFMA clearly recognised that any allocation system might expose operators in the SSF to inequity because (specifically) one of its recommendations to the Panel was 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. (T‑documents page 214)
95. The Panel consulted extensively and on 14 July 1999 issued the report of its findings. The Panel however decided “to defer a full report . . .” with respect to the exceptional circumstances that should be considered or taken into account in the system that it recommended. Whilst it found that allocations of quota in the Commonwealth Gill Net and Hook Sectors between April 1988 and January 1994 per se did not give rise to inequity or constitute exceptional circumstances, it did not determine whether entitlements in that period, in those sectors, offset by a system of weighting in favour of gear classifications against catch history would cause inequity (page 206).
96. The AFMA Board met in August 1999 to consider the report of the Panel and apparently in recognition that some applicants for an ITQ will be disappointed when quota is allocated under the recommended methodology of the Panel, the Minutes recorded:
It is likely that those operators with little catch history as a result of limited fishing or lack of legitimate receipts for their catches, will be most disappointed by the allocation method chosen. (page 233).
97. Although the Panel did not make recommendations as to what constituted an exceptional circumstance, AFMA clearly was prepared to consider such a phenomena in its policy of ITQ allocation because it notified fishers in September 1999 that catch history “to a large extent” affected by exceptional circumstances had been addressed by the recommendation that the best three of the four years between 1994 and 1997 would be taken into account in allocating quota. Nonetheless, in the letter to fishers of September 1999 (page 240 to 243), operators were advised that appeal rights existed against the quota as allocated.
98. An appeal against a decision of AFMA to this Tribunal must follow the procedures outlined in s165 of the Act. It provides that a person affected by a decision of AFMA must initially request reconsideration by an AFMA delegate. Any appeal to this Tribunal must be to seek a review of the reconsidered decision of the delegate.
99. This appeal proceeds only upon the basis that the applicant seeks a greater allocation of quota by reason of his asserted “exceptional circumstances”. No review is sought against the particular policy of AFMA concerning the allocation of ITQs.
100. Throughout this review the AFMA delegate and the parties and their representatives, from time to time, have referred to the decision under review as requiring an examination into either the “exceptional circumstances” or “special circumstances” or “any cogent reasons” justifying departure from policy.
101. For our part we propose only to examine whether the applicant can demonstrate “exceptional circumstances” as that expression is found within the AFMA policy. Whatever might be understood or meant by that expression will in our view be confused if it is understood to mean “special circumstances” or “any cogent reasons”. Those latter two expressions are not found in either the terms of reference of the Panel or in the deliberations of the Panel or in the acceptance of the AFMA Board of the Panel’s recommendations. It may or may not have different meanings. We do acknowledge that the expression “cogent reasons” appears to have its origin in Re Drake by Brennan J adopting that expression to explain the nature of circumstances that may justify departure from policy. Deputy President McMahon used the same expression in Re Skoljarev and Australian Fisheries Management Authority (1995) 21 AAR 306 (“Re Skoljarev”) despite the policy then applicable using the expression “special or unique circumstances”. Davies J similarly discussed this issue on appeal in Skoljarev v Australian Fisheries Management Authority (1996) 22 AAR 331 at 339‑340 and whilst he thought that “special or cogent reasons” might limit or restrict the circumstances that may justify departure from policy he decided on balance that the “correct principles” had been applied in the examination of the applicant’s circumstances. AFMA has indicated that it will depart from its policy if “exceptional circumstances” are demonstrated. As we now stand in its shoes, we will focus on that expression.
102. The expression “exceptional circumstances” is not defined by the legislation nor is it defined by AFMA within the ITQ policy. Assistance as to its meaning is therefore to be obtained from decisions of Courts or Tribunals in other applications or from dictionary meanings.
103. Hopefully the following decisions will indicate that there must be regard, on the one hand, between the subjectivity and context of the circumstances asserted by an individual as exceptional and the preservation of the objectives and intent of legislation and policy on the other hand.
104. In Nikac and Others v Minister for Immigration and Ethnic Affairs (1998) 20 FCR 65 Wilcox J heard an appeal under the Administrative Decisions (Judicial Review) Act 1977 concerning a decision made by the Minister for Immigration and Ethnic Affairs to deport a non-citizen. In his Honour’s review of the decision of the Minister regard was had to a Ministerial policy (“The Government’s Deportation Policy”) that recommendations of the AAT should only be overturned by the Minister in exceptional circumstances and then only when strong evidence could be produced to justify the decision. In the review of the Minister’s decision, His Honour decided that it was not “devoid of plausible justification” and concluded that (paragraph 56):
the term “exceptional circumstances” postulates a criterion which is both vague and subjective. Every case is different, so that there are always some aspects of a case which may be regarded as exceptional. The question inevitably arises: exceptional compared with what? Even if it be conceded that there is nothing very exceptional about drug offences appearing upon a list of convictions, there will always be differences in the circumstances of those offences. For example, I would not myself have thought that the particular offences committed by Nikac were of such a nature as to constitute a reason for taking the unusual step of declining to accept the recommendation of the tribunal, by whom both the offences and all the other relevant circumstances were considered. But it is impossible to categorise a different view as being devoid of plausible justification. Like beauty, “exceptional circumstances” lies in the eye of the beholder.
105. The above decision and analysis of the concept of “exceptional circumstances” was examined by a Full Federal Court in Hicks v Aboriginal and Torres Strait Islander Commission [2001] FCA 586. The Full Court decided (paragraph 21):
We accept the correctness of the approach taken by Wilcox J in Nikac to the use in a legislative or quasi-legislative instrument of the notion of "exceptional circumstances" and consider that approach applicable to the principle.
106. In the context of the Commonwealth Health Insurance Policy, the concept of “exceptional circumstances” was examined in Government Employees’ Health Fund Ltd v Private Health Insurance Administration [2001] FCA 322. That appeal concerned decisions made by the Private Health Insurance Administration Council refusing an adjustment by way of a payment of re-insurance to a registered health insurer. The defined policy of the PHIAC was to make “adjustment payments” if a fund could demonstrate “exceptional circumstances”. To that end the Council decided that in order to ascertain whether “exceptional circumstances” existed, a health fund “must demonstrate that its circumstances were different to those that applied to other organisations and that they were beyond the control of the organisation”. In its review of that part of the policy the Full Court concluded (paragraph 43):
It may be accepted that the Council was entitled to adopt a policy that reflects the concerns apparently underlying rules 4 and 5. It was reasonable for the Council to take account of difficulties that might be caused to other organisations with respect to delayed adjustments, and to weigh the part the organisation requesting the re-calculation played in contributing to the error. A policy which reflected those concerns, and was informative of the standards and values which ought usually be applied in deciding whether to permit further adjustments, would not be unlawful since it would not seek to control the decision-making: see Drake at 641. It is, however, another matter for a statutory decision-maker to adopt a policy which excludes from consideration, as "exceptional circumstances", all circumstances that do not reflect these concerns. The process undertaken by the Council in this case involved substitution of different and narrower criteria for the criterion specified in rule 5.
107. The Court ultimately concluded that in applying a “rigid policy” the PHIAC had erred because it “caused its discretion to miscarry”.
108. In the decision of Kent v Wilson [2000] VSC 98, (24 March 2000) a decision of Hedigan J in the Supreme Court of Victoria, his Honour heard an appeal under the Victorian Sentencing Act 1991 as to whether a prisoner should be released from custody to serve the balance of sentence in the community. We readily acknowledge that the criminal law would require different considerations to the civil law – particularly the Fisheries Management Act – nonetheless his Honour was critical of a Magistrate who found that “exceptional circumstances” were circumstances that were “not typical”. His Honour concluded (paragraph 24):
The magistrate's dictionary definition remains shrouded in mystery, if not doubt. My resort to the Shorter Oxford Dictionary and the Macquarie fails to find "not typical" (the key part of the magistrate's construction of "exceptional circumstances") as finding a place in the definition of exceptions. By and large "exceptional" is defined as being "unusual, or an unusual instance or extraordinary".
109. His Honour quoted part of a decision previously delivered by him where he was also required to examine the concept of “exceptional circumstances” (refer Owens v Stevens an unreported decision of 3 May 1991). His Honour then decided (paragraph 22):
On that occasion I stated,
"The use of the phrase 'exceptional circumstance' is not unknown in the legal lexicon. Section 13 of the Bail Act is a well-known example.
Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning 'unusual, special, out of the ordinary course'. This does mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.
Courts have been both slow and cautious about essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors."
110. In a review of a decision allocating quota, the objectives of a policy must be considered. Any finding of “exceptional circumstances” which may result in an increase of quota may offend the statutory and policy objectives. This issue however must also be considered with a need for justice to an individual (refer Davies J in Skoljarev). In Re Drake, Brennan J decided that “if it were shown that the application on ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice”.
111. In Re Drake His Honour decided at (page 645):
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review.
conclusion and reasons for decision
112. In the present application Mr White has applied to review a decision made by a delegate of the respondent concerning the allocation of quota to him. He has asserted that his circumstances are exceptional and a greater quota should have been allocated.
113. Mr White presently is 47 years of age and has a long and meritorious history in the shark fishing industry. In addition to his service in various industry bodies as both a representative and as a member, he has also been engaged in research on behalf of State and Commonwealth agencies. His commitment to the industry may be demonstrated not only by this service, but with respect also to his self employment (commencing at an early age) being largely self taught following the tragic death of his father who was also a shark fisherman.
114. We were impressed by the ability of Mr White as a shark fisherman as may be evidenced by his returns in the period 1986 to 1988 which were verified and by his returns in the early 1990’s which, although not verified, were not disputed by the respondent.
115. Despite the adversity of the loss of his father and the loss of his vessel “Karen-El”, Mr White acquired a larger boat which, having regard to the shark returns from it, permitted a reasonable expectation by him that he would enjoy the benefits of shark fishing for many years. However in early 1993 the applicant was diagnosed with diabetes which had a significant affect on his ability to catch shark. Indeed by 1995 he was forced to engage a skipper and deck crew to earn income. In 1998 the effects of the diabetes came under control and with some optimism, Mr White decided to return to shark fishing. Whilst repairing and renovating his boat in March 1999 it was destroyed by fire. During the period of inability to engage in shark fishing by reason of the diabetes, Mr White had been prohibited from engaging an authorised skipper by Regulations issued by the Tasmanian Department of Primary Industries Water and Environment (refer Annexure E to the applicant’s Statement of Facts and Contentions). That period of invalidity occurred within the assessment period 1994 to 1997 and upon the evidence heard in these proceedings other persons in the SSF who had been allocated quota had engaged skippers who were not authorised.
116. In broad general circumstances – devoid of context – illness and loss of income might not be regarded as exceptional circumstances. It might be thought that loss of income and or illness is a risk that all persons face from time to time and in those circumstances the qualification of “exceptional” might not be thought appropriate. A wage and salary earner if ill or incapacitated has the opportunity to be paid sick pay or may elect to take other types of leave. The entitlement to income in the event of illness or incapacity will probably have its origin in the contract of employment or in an industrial award. In the case of workplace injury or injury occurring in association with the use of a motor car, there are statutory schemes providing income by way of compensation to persons who are injured or ill and consequently incapacitated.
117. No such benefits are attached to self employed fishers. If there is illness and consequent incapacity the fisher is unable to obtain catch and earn income. Whilst that risk might be lessened if the fisher held a policy of income protection insurance, we heard no evidence that such a policy was held by the applicant. In the absence of income the ability to meet payments exacerbates the fisher’s economic position.
118. In the present case the onset of diabetes suffered by the applicant was not predicted and had a profound incapacitating affect upon him. The illness was sudden in its affect and caused a manifest reduction in his ability to catch shark. The illness was diagnosed and first suffered in the year prior to the commencement of the assessment period and but for the engaging of deck crew in 1995, the applicant suffered a significant reduction in quota throughout the assessment period. We note that in the five years between 1988 and 1992 the applicant caught more than 90,000kgs of shark in all but one year. In the year 1987 he caught 89,000kgs of shark. In 1993, being the year of diagnosis of diabetes, his catch was slightly greater than 42,000kgs of shark and decreased to 33,410kgs in 1994. Except for his catch in 1995 which was with the assistance of crew, his catch in 1996 was 24,552kgs and in 1997 was 2350kgs.
119. We think that having regard to the content of the reviewable decision and the Proof of Evidence of Ms Sasche that an unfair interpretation has been made of the applicant’s diabetes. The nature and magnitude of it and the profound incapacitating effects were not understood. Ms Sasche, to her credit, resiled from part of her affidavit when in evidence she learnt of the contents of a report from one of the applicant’s treating doctors who certified that he was unable to return to shark fishing until December 2001. It was therefore wrong for AFMA to find that the applicant chose to catch rock lobster when in fact that “choice” was made as a means of earning some income in a method of fishing which was within the applicant’s physical limitations at a point in time when he was physically unable to engage as a shark fisherman.
120. We therefore are satisfied and find as a fact that the applicant did suffer from diabetes which had a significant affect on his ability to engage in shark fishing which in turn was responsible for the dramatic reduction in his catch subsequent to 1993. We note the evidence that some of the catch returns for the 1990’s were not verified but we also note that Ms Sasche did not take issue with the figures as claimed. We regard the applicant as a witness of truth who did not exaggerate or embellish his circumstances. We note that some errors were made by him in his bookkeeping and in his interpretation of some forms that he completed but we have no reason to doubt that the figures advanced by him as to his returns subsequent to 1993 are truthful.
121. We note that there was considerable cross-examination of Mr White concerning the locations where shark was caught [Deleted pursuant to Order made on 4 August 2004 – refer paragraph 5 earlier]. In our view nothing turns on this because it was clear from the evidence of Ms Sasche that AFMA did not distinguish (in its examination of returns for the period 1994 to 1997) whether fish was caught in Tasmanian or Commonwealth waters.
122. We are therefore of the view that the applicant’s circumstances are “unusual” and “out of the ordinary course”. They are circumstances also which are “outside reasonable anticipation or expectation” (refer Owens v Stevens). In the context of a fishing industry and the proportional allocation to operators within the fishery of ITQs based on a TAC, we are satisfied that the applicant’s circumstances are exceptional. But for his illness and his consequent modest returns between 1994 and 1997 we are satisfied that Mr White could reasonably have expected to have had returns from fishing at a far greater level than the level to which AFMA had regard when allocating the quota under review by these proceedings.
123. We are aware that any increase in quota to the applicant will have the affect of reduction in quota to other members of the SSF. However if the applicant’s circumstances had been properly considered and understood in 2001 when the primary decision was made, there may not have been any need for review and the allocations to other members of the SSF would have then been made having regard to the allocations which should have then been made to the applicant.
124. We are therefore alert to the economic efficiency of the whole of the SSF and the operators in it. If there is merit in the assertions of the applicant that other members of the SSF had been given the benefit of a catch obtained by unauthorised skippers there may be a review of entitlements of those persons – as was intimated by Ms Sasche in her evidence – which might in the long run cause an overall review of the allocations to operators within the SSF. Nonetheless it is our view on balance that the applicant – being able to demonstrate that his circumstances are exceptional should have the benefit of an increased allocation of quota.
125. The Panel recommended that the best three of the four year period between 1994 and 1997 be considered in the allocation of ITQs in recognition that the vicissitudes personally of a fisherman may extend to illness or loss or damage to gear or vessel. However the Panel was of the view that such circumstances within a four year period may distort the catch returns and the fisher’s relative economic position but the distortion would be lessened by selection of the three best years in the four year period.
126. It is apparent from those observations that the Panel did not consider the circumstance of a fisher who suffered circumstances which would significantly distort his catch returns for the greater or the whole of the period 1994 to 1997.
127. The issue for us then is to consider a basis upon which an increased allocation of quota can be made. Some previous decisions of the Tribunal have decided that an imputation of catch return can be made within the assessment period having regard to returns from former or subsequent years of fishing. Other decisions have substituted the catch returns from other years. This provides some certainty (which imputation does not necessarily give).
128. An increase in quota to the applicant will not put the species at risk or offend s3 of the Act. The TAC, as determined from year to year has regard to sustainable levels of shark. Operators within the SSF have a proportion of the TAC, defined by their ITQ’s.
129. On balance we have concluded that it would be preferable to substitute other years of catch in order to assess the applicant’s quota allocation. The years between 1994 and 1997 have resulted in a significant reduction in the returns from shark fishing but only by reason of the inability of the applicant to fish for shark having regard to the exceptional circumstance of his diabetes. The years prior to 1994 demonstrated a consistent history of higher returns from shark fishing. The years subsequent to 1994 show a significant reduction due to illness and on balance we are satisfied that it would not be appropriate to have regard to the returns for the years 1994 to 1997. The returns in those years are so far divorced from the reality of the applicant’s position prior to 1994 that to assess quota based on the returns for those years would be unfair and harsh.
130. It was submitted by AFMA in these proceedings and the other two applications heard simultaneously that if substituted years were considered in allocating quota that they should be years as close as practically possible to the years comprising the assessment period. We think that those submissions are sound and it is our view on balance that the best of the three years between 1990 and 1993 inclusive should be considered in allocating quota to Mr White.
131. It would have been preferable to have had regard to the catch returns of other shark fishers between 1994 and 1997 and adopt those returns as a basis of increased quota allocation. A similar basis was adopted in Re Walton where the Tribunal, having found that he was entitled to a A6 endorsement gave consideration to the “mean catch of A6 fishermen in the years 1994, 1995 and 1996”. In the present case no such figures are available and it is doubtful – having regard to the nature of the fishing operations previously conducted by Mr White that any comparable analysis could be undertaken.
132. We understand that despite our recommendation above there will be a variation made as to quota having regard to the implementation of a policy by AFMA in subsequent years to reduce quota by reason of variations in the TAC. That issue is not a matter under review in these proceedings. Additionally it would be our recommendation that there be an apportionment between school and gummy shark when quota is allocated by a reference to the evidence heard in these proceedings.
133. The decision under review will be set aside and in substitution it is decided:
(i)that the application be remitted to the respondent with the Direction that quota be allocated for the 2001 year by reference to the average catch of the best three years in the period 1990 to 1993 inclusive; and
(ii)that there be an apportionment in quota when allocated between school and gummy shark by reference to the evidence heard in these proceedings.
I certify that the 133 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member; and
Professor B Davis, MemberSigned: Grace Carney
AssociateDates of Hearing 3, 4 and 5 August 2004
Date of Decision 28 February 2005
Counsel for the Applicant Mr Crisp
Solicitor for the Applicant Creese Crisp and Fay
Counsel for the Respondent Mr Reed
Solicitor for the Respondent Australian Government Solicitor
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