Wilkins and Australian Fisheries Management Authority and Anor
[2002] AATA 808
•16 September 2002
CATCHWORDS –FISHERIES – Southern Shark Fishery's Register – whether Register should be altered - whether error made by AFMA in transferring permanent and/or seasonal quote –– effects of altering the Register once Register closed – weight to be given to AFMA's policy – whether to depart from that policy – decision set aside
Fisheries Administration Act 1991 ss. 4 and 7
Fisheries Management Act 1991 ss. 3, 4, 17, 21 and 32
Re O'Halloran and Australian Fisheries Management Authority [2002] AATA 160
Skoljarev v Australian Fisheries Management Authority (1995) 39 ALD 517
DECISION AND REASONS FOR DECISION [2002] AATA 808
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2002/565
GENERAL ADMINISTRATIVE DIVISION )
ReDAVID WILKINS
Applicant
AndAUSTRALIAN FISHERIES MANAGEMENT AUTHORITY
Respondent
And SLIDELL PTY LTD
Party Joined
DECISION
Tribunal:Miss S A Forgie (Deputy President)
Date:16 September, 2002
Place:Melbourne
Decision:The Tribunal:
1.set aside the decision of the respondent dated 2 May, 2002 affirming an earlier decision dated 8 February, 2002; and
2.substitute a decision that:
(1)the Register for 2001 for the Southern Shark Fishery be amended to show a transfer of seasonal quota of 12,346kg from Mr David Fowler to the applicant, Mr David Wilkins; and
(2)the Register for 2001 for the Southern Shark Fishery be amended to delete any transfer of quota, seasonal or permanent, from the applicant, Mr David Wilkins, to the party joined, Slidell Pty Ltd.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 28 May, 2002, the applicant, Mr David Wilkins, applied for review of a decision of a delegate of the respondent, the Australian Fisheries Management Authority ("AFMA") dated 2 May, 2002. The delegate had been asked to reconsider an earlier decision made by another delegate of AFMA on 8 February, 2002. That decision had been to refuse to amend the Register for 2001 for the Southern Shark Fishery ("SSF") as requested on behalf of Mr Wilkins. The delegate had decided not to change the register. On 5 August, 2002, Slidell Pty Ltd ("Slidell") was made a party to the proceedings.
At the hearing, Mr Steven Brockwell, who was the Manager for Mr Wilkins and now for Slidell represented them at the hearing. AFMA was represented by its solicitor, Ms Dornau. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with statements of Mr Rohan Wilson, Ms Clara Luttrell, Ms Kerry Johnson, Ms Yvonne Van Der Meer and Mr David Fowler, an affidavit of Ms Margot Lieselotte Sachse, a diagram representing the transfer of quota and a letter from AFMA to Mr Fish dated 29 March, 2002. Oral evidence was given by Mr Brockwell in support of Mr Wilkins' case and that of Slidell and by Mr Wilson and Ms Luttrell in support of AFMA's case.
THE ISSUE
The issue in this case is whether the Register for the Southern Shark Fishery should be amended to show a transfer from Mr Wilkins to Slidell of 37,253kg permanent quota of gummy shark and 12,346kg of leased or seasonal quota in the 2002 season.
BACKGROUND
Legislative framework
AFMA was established under the Fisheries Administration Act 1991 ("the Administration Act") to undertake a number of functions including devising management regimes in relation to Australian fisheries, management responsibilities in relation to fisheries management arrangements entered into with the States and Territories and the establishment and allocation of fishing rights (Administration Act, s. 7).
The Fisheries Management Act 1991 ("the Act"), which is an associated law for the purposes of the Administration Act (s. 4(1)), came into operation on 3 February, 1991. Pursuant to s. 17 of the Act, AFMA must either determine a plan of management for a fishery or determine that a plan of management is not warranted. Where it determines that a plan of management is warranted, it must determine the plan of management in writing after consultation with such persons engaged in the fishing industry as appear to it to be appropriate and after giving due consideration to any representations made to it. A "fishery" is defined to mean:
"… a class of activities by way of fishing, including activities identified by reference to all or any of the following:
(a)a species or type of fish;
(b)a description of fish by reference to sex or any other characteristic;
(c)an area of waters or of seabed;
(d)a method of fishing;
(e)a class of boats;
(f)a class of persons;
(g)a purpose of activities." (s. 4(1))
A "fish" is defined to include "… all species of bony fish, sharks, rays, crustaceans, molluscs and other marine organisms, but does not include marine mammals or marine reptiles." (s. 4(1))
AFMA has formulated a plan of management in relation to the SSF and there is no suggestion that, in doing so, AFMA has not followed the procedural steps set out in s. 17 of the Act. As there is no suggestion in this case that the relevant plan of management was not formulated in the appropriate manner, I have not summarised these procedural steps. The plan of management for a fishery must set out its objectives, the measures by which the objectives are to be attained and the performance criteria against which the measures taken are to be assessed (s. 17(5)). A plan of management may also determine the method or methods by which the fishing capacity of fishery, or part of a fishery, is to be measured (s. 17(6)).
A plan of management for a fishery may also provide for the management of that fishery by means of a system of statutory fishing rights and other fishing concessions (s. 17(6)(b)). A "fishing right" means a "statutory fishing right" (s. 4(1)) and a "fishing concession" means a statutory fishing right, a fishing permit or a foreign fishing licence (s. 4(1)). A "statutory fishing right" means the nine rights specified in s. 21 (s. 4(1)). A plan of management may provide for one or more of those nine rights (s. 21(1A)). A "fishing permit" means those permits granted under s. 32 of the Act. Upon an application being made to it in an approved form, AFMA may grant a person a fishing permit. Subject to certain qualifications which are not relevant in this case, the fishing permit authorises the person, or another person on his or her behalf, to use an Australian boat for fishing in a specified area of the Australian Fishing Zone ("AFZ") or in a specified fishery (s. 32(1)). A fishing permit may authorise the use of a boat for, among other purposes, commercial fishing generally (s. 32(4)(a)). A fishing permit is granted subject to the conditions specified in s. 32(5) and to such other conditions as are specified in the permit (ss. 32(6) and (7)).
Where a plan of management is in force for a fishery, AFMA must perform its functions, and exercise its powers, under the Act in relation to the fishery in accordance with the plan of management (s. 17(10)). Section 3(1) sets out the objectives that AFMA must pursue in the performance of its functions. They are:
"(a) implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and
(b)ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment; and
(c)maximising economic efficiency in the exploitation of fisheries resources; and
(d)ensuring accountability to the fishing industry and to the Australian community in AFMA's management of fisheries resources; and
(e)achieving government targets in relation to the recovery of the costs of AFMA."
In addition, it must have regard to the objectives of:
"(a) ensuring, through proper conservation and management measures, that the living resources of the AFZ are not endangered by over-exploitation; and
(b)achieving the optimum utilisation of the living resources of the AFZ; and
(c)ensuring that conservation and management measures in the AFZ and the high seas implement Australia's obligations under international agreements that deal with fish stocks;
but must ensure, as far as practicable, that measures adopted in pursuit of those objectives must not be inconsistent with the preservation, conservation and protection of all species of whales." (s. 3(2))
Establishment of Southern Shark Fishery
In Re O'Halloran and Australian Fisheries Management Authority [2002] AATA 160, I set out the steps leading to the formulation of the management plan for the SSF. I will not repeat them here. That management plan regulates fishing for gummy and school shark in the waters off the coast of South Australia, Tasmania and Victoria. In order to reduce over-harvesting and excess capacity, the SSF is managed through a system of total allowable catches ("TACs") and quota which was initially allocated among individual operators on the basis of verified catch history ("VCH") during the period 1994-1997. Those operators were also required to hold a valid fishing concession endorsed for the South East Trawl Fishery, Great Australian Bight Fishery, SSF, Tasmanian shark gillnet, hook or rock lobster sector or the South Australian sector of licensed fishers with access to school and gummy shark. The TAC is set at a level for each year that, allowing for any applicable carryover from the previous year, has been identified as being the amount that can be taken from a fish stock on a sustainable basis. Percentages of the TAC are then allocated to individual operators as Individual Transfer Quota ("ITQ").
From December, 2000, all eligible SSF permit holders were granted permits, which included conditions restricting catches of school and gummy shark to the specified ITQs from 1 January, 2001. SSF permits for 2002 were issued from 19 December, 2001 to take effect from 1 January, 2002. They were issued to operators holding an SSF permit between 15 December, 2001 and 31 December, 2001.
Mr Wilson described two classes of SSF permits. I accept his description and find:
"5. … Class A SSF permits were granted to operators holding an existing SSF permit from mid December 2000 according to the SSF Quota Entitlement Register. Class A SSF permits allow an operator to operate in the fishery for a full fishing year, transfer the permit to any other person (subject to AFMA's approval) and take quota species and non quota species in accordance with their permit conditions.
6.Class B SSF permits are granted, on application, to those operators who had satisfied the criteria stated in paragraph 4 above and were therefore allocated permanent SSF quota, but who had sold their permit under the shark structural adjustment program. These permits are non transferable and allow the operator to fish for 4 months in the SSF solely for quota species (for which quota is held) – T28/264. A Class B permit may also be granted, on application, to a purchaser of shark quota if levy on that quota has yet to be paid." (Exhibit 2)
The permit is endorsed with the ITQ allocated to the operator. Operators can trade in ITQs. They may transfer ITQ between them permanently or may lease ITQ on a seasonal basis. The total of quota held permanently by an operator, and on which he or she pays a levy to AFMA, and quota the operator leases is known as his or her total net quota holdings ("TNQH").
On the basis of Mr Wilson's evidence, I find that, according to AFMA's policy regarding the permanent transfer of shark quota, permanent transfer would not be approved unless accompanied by an application to transfer the transferor's entire permit package (Exhibit 2, paragraph 15).
Maintenance of the Register and reconciliation of quota – general policy
Since 15 December, 2000, AFMA has maintained a Register of SSF quota entitlements ("the Register"). The Register has been maintained by Ms Luttrell, who has maintained Registers for the past eight years. She is the Licensing Officer in AFMA's Business/Licensing Section. Quota transfers are categorised as either seasonal leases or permanent transfers. Seasonal leases are leases of quota units expressed in kilogrammes and are for a finite period that does not extend beyond the current fishing season. Permanent transfers occur where quota units are sold.
On the basis of Mr Wilson's statement, I find that it is AFMA's policy not to process permanent transfers received after 15 December in any year until after the beginning of the following season. The Register is closed at midnight on 15 December in relation to permanent transfers for the SSF, South East Fishery and the South East Non Trawl Fishery. It is a policy that facilitates AFMA's allocating new season quota allocations, invoicing levy and granting permits for the beginning of the following season commencing on 1 January. Seasonal leases in the SSF are approved by AFMA until 15 January in the year following the close of the year's fishing season on 31 December. The two week extension into the following season allows operators to lease in quota in order to reconcile catches taken up to the close of the season on 31 December.
After 15 January, AFMA reconciles quota holdings against catches and then provides a statement to each operator showing their total catch during the season and their quota holdings. Operators are given 28 days within which to query the statement to query the accuracy of the data. At the end of the 28 day period, AFMA determines any applicable carryover or carryunder, to which I will return, from the previous year.
On the basis of Ms Luttrell's statement, I find that, in relation to the SSF, she is responsible for approving and processing applications for seasonal and/or permanent transfers of quota according to the policies stated in paragraph 15 above. She also amends the Register to record those transactions against the TNQHs of operators.
When transfer applications are received by AFMA, I find that Ms Luttrell deals with them in the following manner:
"4.All quota transactions are conducted on the advice of the parties involved, and in most cases the information required is contained in the written applications to transfer quota (QS1 forms). In some cases, however clarification or confirmation of the information recorded on these applications is necessary. In such circumstances I often seek verbal instructions from quota holders to supplement the information on the QS1. These verbal instructions are recorded on file." (Exhibit 3)
The 2001 quota year in the Southern Shark Fishery
There was no disagreement among the parties as to most aspects of the manner in which AFMA managed quota in the SSF in the 2001 quota year. In view of that and on the basis of the material in the T documents and the statement of Mr Wilson, I have made the findings set out in this section of my reasons. Mr Wilson is the Manager of the Business/Licensing Section in AFMA and has overall responsibility for granting fishing concessions, quota registers and levy collections.
In January, 2001, AFMA issued the Southern Shark Fishery 2001 Management Arrangements ("Management Arrangements") in which it notified operators in the SSF that a global TAC had been set for both school shark and gummy shark (T documents, pages 269-276). That global amount was 2,159.03 tonnes of trimmed carcass (fins on). Of that amount, 2,074.17 tonnes were allocated to operators in the SSF, the South East Trawl Fishery and the Great Australian Bight Trawl Fishery. It was divided among the operators in those fisheries on the basis of their VCH and each given an ITQ. The permit held by each operator was then endorsed with his or her quota allocation and the kilogramme equivalent. In addition to permanent quota units in an operator's TNQH, the endorsement takes account of any quota that is leased in, or leased out, by the operator.
Compliance Section in AFMA deducts quota from an operator's total quota holdings using the verified weights submitted by the first receiver of the shark from the operator after a fishing trip. If that information is not available, it uses the accurate catch weight provided by the operator until the relevant information is provided by the first receiver of the shark.
It is the responsibility of each operator to monitor his or her own catches and to ensure that he or she does not exceed his or her quota holdings. The Compliance Section posts a Quota Transaction Statement ("QTS") to every SSF operator at the end of each month. That details the amount of quota held by the operator and the amount of the quota that has been caught by him or her at the end for the month.
The QTS prepared by AFMA each month lists all transactions in quota. If an operator exceeds his or her TNQH at any time during the year, he or she must cover the excess catch immediately by either buying or leasing quota.
The Management Arrangements noted that AFMA prohibited the transfer of quota between the SSF and other fisheries and also prescribed the following limitations upon transfers of quota in the 2001 season:
"a) upon approval by AFMA Management of an application to transfer a Class A permit and all associated quota as a package, that package will be able to be permanently transferred;
·the restriction on transfer to whole packages only (Permits and all associated quota) in 2001 is a precautionary measure to enable AFMA to conduct a complete re-allocation for the 2002 season if necessary. For example, if there is a successful Federal Court challenge to the quota allocation formula;
b)upon approval by AFMA Management of an application to seasonally transfer quota in kilograms, quota will be able to be leased between operators; and
c)permanent transfer of quota between the SSF, SET and GAB fisheries will not be allowed in 2001.…" (T documents, page 275)
The Management Arrangements also set out the manner in which an operator could lease, sell or buy quota in the SSF:
"If you wish to lease, sell or buy quota for school and/or gummy shark in the fishery you should first contact another shark fishery operator, or a quota broker, to make arrangements to do this. Once the transfer has been organised, you must send a completed "Application to Transfer Quota" form to the AFMA Licensing Section recording the details of the transfer. The transfer does not take effect until AFMA has processed the application and notified both parties of the outcome." (T documents, page 275)
A system of carryover was implemented in 2001 after operators had been given an opportunity to attend port meetings in Victoria, Tasmania and South Australia. On the basis of the evidence of Ms Sachse, who explained the system (and that of carryunder) at each port meeting, I find that AFMA introduced the system so that it had some flexibility. Flexibility was required to take account of the variations in abundance and availability of individual species and to take account of circumstances affecting individual operators in a particular season and reducing their catch. On the basis of Mr Wilson's evidence, I find that, if an operator undercaught his or her TNQH in that year, his or her 2002 ITQ allocation was credited with the uncaught quota up to 20% of his or her TNQH in 2001. That is to say, the operator had a carryover. It was calculated on the basis of kilogrammes of school and gummy shark and not upon quota units. No levy is payable on quota carried over as credit.
If an operator overcaught his or her TNQH for the 2001 fishing season, he or she had up to 20% of his or her TNQH in 2001 deducted from his or her 2002 quota allocation. That is, the amount of the overcatch was debited to the 2002 quota allocation. Any overcatch in excess of 20% of the TNQH was treated as an offence under the Act. Furthermore, AFMA would not approve any application for an outgoing lease or transfer of quota until the overcatch position was resolved.
The amount of carryover or carryunder from the 2001 season was not known until the catches at the end of the 2001 fishing season were reconciled against the 2001 quota holdings. Reconciliation required AFMA to have regard to weight discrepancies and missing forms. Once the reconciliation was completed, AFMA advised each operator of the effect of carryover credits or debits to his or her quota holdings. AFMA might vary or amend an operator's quota in current or following years for any overcatches not reconciled or discovered following conviction or where AFMA is satisfied that it has reason to believe that catches were misreported. Operators whose catches exceed their quota holdings may also face administrative restrictions.
Maintenance of the Register and reconciliation of quota in SSF for 2001
On 13 December, 2001, AFMA wrote to each operator enclosing his or her QTS and advised the operator to undertake a manual calculation using catch figures not shown on the QTS to determine any amount of quota needed to balance the final figures (T documents, page 276). The operator was also advised that he or she had from 1 January, 2002 until 15 January, 2002 to lease in quota to ensure that any over catch was within 20% of the operator's 2001 TNQH. AFMA would send out a final QTS towards the end of January, 2002. Once the operator received the final QTS, he or she would have 28 days in which to query AFMA regarding the data contained in the QTS. At the end of that period, AFMA calculated the operator's carry over or carry under.
QS1 forms lodged with AFMA and involving Mr Wilkins, Mr Slidell and others
On 17 December, 2001, Mr Brockwell submitted to AFMA an Application to Transfer Quota ("QS1") in the SSF from Criterion Pty Ltd ("Criterion") to Mr Wilkins (T documents, pages 277-278). The quota transferred was 12,346 kg of gummy shark for the 2001 season. Although not reflected on the form, I find on the basis of Mr Brockwell's evidence that he had paid $10,000 to $12,000 to Criterion for seasonal quota that he leased for a one year period. Part of his reason for leasing seasonal quota was to cover Mr Wilkins' overcatch and the other was with an eye to the carryover into the 2002 season. Criterion's permit number was quoted on the form. Other than a boat name and an Australian Business Number ("ABN"), the form did not seek any other information regarding the transferor. In relation to Mr Wilkins, the form sought information regarding his address (postal and otherwise), telephone numbers (land line, mobile and facsimile), the name of the "main contact person", permit number and boat name. Mr Brockwell's name was given as the main contact person. The form then sought information regarding the quota to be transferred. It referred to seasonal and permanent quota or to both. The form was signed on behalf of Criterion and by Mr Wilkins on 10 December, 2001.
On 14 December, 2001, Mr Wilkins and Slidell completed a second QS1 (T documents, pages 279-280). Mr Wilkins' permit number was quoted but Slidell did not have a permit. The form again gave Mr Brockwell as the main contact person for Slidell. It referred to the transfer of both seasonal and permanent quota for the 2002 season and transferred a total of 12,346 kilogrammes of seasonal quota together with all units of permanent quota (i.e. the equivalent of 37,253kg of permanent quota). Mr Brockwell submitted the form to AFMA on 17 December, 2001.
On 15 January, 2002, Mr Brockwell submitted a third QS1 to AFMA showing a transfer from David G. Fowler to Mr Wilkins (T documents, pages 281-282). Mr Brockwell was shown as the main contact person for Mr Wilkins. The quota to be transferred from Mr Fowler to Mr Wilkins was shown as 12,346 kilogrammes. It was seasonal quota and was for the 2001 season.
Steps taken in AFMA in relation to QS1 forms
On the basis of her evidence, I find that, on 17 December, Ms Luttrell checked the permit referred to in the QS1 form relating to a transfer from Criterion to Wilkins and noted that it was not held by Criterion. The permit was held by Mr David Fowler. She telephoned him on that day and advised him of two matters. The first was that she had received a QS1 in respect of his permit but that it had wrongly recorded Criterion as the transferor. It would need to be rectified by sending AFMA a corrected and signed QS1 before the final day for seasonal transfers i.e. 15 January, 2002.
The second matter of which Ms Luttrell advised Mr Fowler was:
"… that the final day for the receipt of permanent quota transfer applications – 15 December 2001 - had passed. Mr Fowler stated that he would get back to …[her] regarding the application for seasonal lease of 12,346kg of his gummy shark quota." (Exhibit 3, paragraph 9)
In relation to the QS1 form transferring all quota from Mr Wilkins to Slidell, Ms Luttrell did not take any action for the following reasons:
"… AFMA will not approve applications for permanent transfers of SSF quota unless the transfer includes the whole permit package – the SSF permit and all associated quota. As the applicant had not applied to transfer his SSF permit 25872B to Slidell Pty Ltd, the application for the permanent transfer of his shark quota could not proceed. In addition, the applicant did not hold any uncaught quota which could be used to process his application for the seasonal transfer of 12,346kg of gummy shark quota to Slidell Pty Ltd." (Exhibit 3, paragraph 10)
There were various discussions between Ms Luttrell and Mr Brockwell during the processing of the QS1 forms. I will return to them later. Having regard only to the steps taken and not to the reasons for her doing so, I find that Ms Luttrell:
processed the seasonal lease of 12,346kg from Mr Fowler to Mr Wilkins;
as Mr Wilkins had overcaught his 2001 gummy shark quota by 5,208.02kg, only 7,137.98kg was available in his account to be transferred to Slidell;
sent by facsimile to Mr Brockwell a Seasonal Transfer Confirmation for 2001 season. It showed that a seasonal transfer of 7,137.98kg of gummy shark from Mr Wilkins to Slidell had been completed on 15 January, 2002 and that its details had been entered on the Register;
received by facsimile and application to transfer Mr Wilkins' SSF permit to Slidell. As it contained an error, she returned it to Mr Wilkins for amendment. A corrected application was received on 16 January, 2002 and the accompanying fee on 23 January, 2002; and
the transfer of Mr Wilkins' permit to Slidell was approved on 14 March, 2002 after all catch documentation had been received from Mr Wilkins.
Consequences of steps taken by AFMA
The practical result of the transfer of seasonal quota to Slidell for the 2001 season was that it had a TNQH of 7,137.98kg and was undercaught by that amount for that season. The carryover that it was entitled to add to its quota in the 2002 season was 20% of 7,137.98kg (i.e. 1,427.59kg). After the transfer of seasonal quota from Mr Fowler, Mr Wilkins had a carryover of 7,137.98kg for the 2001 season.
CONSIDERATION
At the heart of this case are the documents lodged by Mr Brockwell in December, 2001, the actions taken by Ms Luttrell in relation to those documents and the conversations that took place between the two of them. They need to be considered first.
When I have regard only to the QS1 forms lodged by Mr Brockwell on 17 December, 2001, I am satisfied that they reflect the following transactions and intended outcomes:
In the 2001 season, Mr Wilkins, being of the view that Criterion owned ITQ of 12,346kg for gummy and school shark in the SSF, had leased that ITQ for that season;
As Mr Wilkins already held 37,253kg of ITQ, that meant that his TNQH in the 2001 season would be 49,599kg and the maximum carryover he could take from the 2001 season to the 2002 season would have been 20% of his TNQH i.e. 9,919.80kg.
In the 2002 season, Mr Wilkins would transfer 12,346kg of seasonal quota and 37,253kg of ITQ to Slidell. That gave Slidell TNQH of 49,599kg for 2002. It would have the benefit of any carryover held by Mr Wilkins.
On the basis of the evidence of Mr Brockwell and on the basis of the findings of fact that I have already made about Ms Luttrell's telephone calls to Mr Fowler, I find that Mr Brockwell had no knowledge that there was any problem at all with the QS1 forms that he had lodged. He said in evidence that he knew that, in order to transfer quota permanently, an operator's permit had also to be transferred. That is reflected in the Management Arrangements in referring to the transfer of a Class A permit. This, however, does not detract from his evidence that he thought that he had taken all appropriate steps to transfer the quota in the two sets of transactions I have set out. He was supported in his thinking so by the statement in the Management Arrangements that, once a transfer has been organised, an Application to Transfer Quota (i.e. a QS1 form) must be lodged with AFMA. That was under the heading of "What do I have to do to lease, sell, or buy quota in the expanded SSF?" (T documents, page 275). Mr Brockwell followed what he was told to do. There is no suggestion either on the form or in the Management Arrangements that more must be done to transfer the quota. No reference is made to the earlier reference in the Management Arrangements to the transfer of a Class A permit and all associated quota as a package. Having regard to the document as a whole, I do not consider that the instructions to operators to use a QS1 form to transfer quota can be read as qualified by the reference to the need to transfer the permit as well. In view of that, I find that Mr Brockwell thought that he had done everything that he needed to do in order to transfer the quota. I also find that he thought that AFMA would tell him straight away if something was wrong but he heard nothing.
It is certainly true that the Management Arrangements state that the transfer does not take effect until AFMA has processed the application and notified both parties of the outcome. I accept the evidence of Mr Wilson that, according to the AFMA's Charter of Service, it sought to notify parties of that outcome within seven working days. I find that Mr Brockwell did not hear from AFMA regarding the transfer. As I have found earlier, Ms Luttrell advised Mr Fowler that a transfer had been lodged in respect of the permit registered in his name. On the basis of Mr Wilson's evidence, I find that it is AFMA's normal practice to contact only the permit holder where a transfer has been lodged in the name of a person other than the permit holder. The rationale for this approach is that AFMA assumes that the transfer is a commercial transaction that is subject to AFMA's approval. If the transferor of the quota wants to settle and receive his or her money, he or she will get the paperwork to AFMA. It further assumes that the transferor will contact the transferee. It makes no attempt to contact the transferee and that is despite its QS1 form seeking the name of a contact person for the transferee. Indeed, it seeks a contact person for the transferee and not for the transferor.
A difficulty with AFMA's practice is that it assumes that all commercial transactions are conducted in the same way and that a permit holder will go out of his or her way to "do the right thing" by a person to whom that permit has been transferred. Certainly, a transferor has obligations to transfer a permit but it is known by AFMA that permits are sold by operators to other operators without the necessary transfers' being submitted to AFMA. The permit may be sold more than once before a transfer is lodged for registration. The system leaves a transferee who has paid for quota and whose transaction is not subject to the approval of AFMA in a very vulnerable position should there ever be an unscrupulous operator in the industry.
Although he did not give evidence and his reasons for not doing so are unknown, it would seem that Mr Fowler did not submit a form of transfer but that Criterion believed that the permit had been transferred to it. Having not transferred the permit, he is told by AFMA to submit the appropriate paperwork. Clearly, it was not something that was pressing for him because he had already sold his permit to Criterion. I accept Mr Fowler's statement that he was not asked by AFMA to inform Mr Brockwell or Criterion of AFMA's request for the paperwork or that there was a problem. On the basis of Ms Johnson's statement of 19 February, 2002, I find that Mr Fowler informed Criterion that the permit had not been transferred to it. He did so on 14 January, 2002. On the same day, Criterion advised Mr Brockwell of the problem and he was able to get a transfer signed by Mr Fowler and by Criterion.
Almost a month had gone by since he had submitted the transfers. It is clear from his evidence that Mr Brockwell was extremely anxious when he realised that all was not as it should be and that he effectively only had some 24 hours in which to rectify the imperfect transfer from Criterion to Mr Wilkins. He was so concerned about the leased quota. It was in this state of mind that I find that he had conversations with Ms Luttrell regarding the processing of the transfer of quota on the QS1 forms.
In her statement, Ms Luttrell said that, when she was processing the QS1 form transferring seasonal quota from Mr Fowler to Mr Wilkins:
"… I then ascertained that, according to the Register, the applicant had overcaught his 2001 gummy shark quota by 5,208.02kg. I telephoned Mr Brockwell and informed him of this and that the applicant's available balance for transfer to Slidell Pty Ltd was 7,137.98kg. I sought confirmation from Mr Brockwell that he wished the leases to proceed, despite only 7 tonnes being available to lease from the applicant to Slidell Pty Ltd. His instructions to me were to process the seasonal quota leases in the 2001 season so that Slidell Pty Ltd could have the carryover. I distinctly recall his words to be "I want Slidell to get the carryover". The only way I could act on these verbal instructions and the written applications was to process the lease of 12,346kg from David Fowler to the applicant, have the 5,208.02kg overcatch automatically covered and leave 7137.98kg available in the applicant's account for leasing on to Slidell Pty Ltd. I confirmed this with Mr Brockwell verbally before I finalised the transaction process." (Exhibit 3, paragraph 13)
Ms Luttrell noted on the QS1 form relating to the transfer from Criterion to Mr Wilkins: "Processed 2001 Season so he can have carryover Advised 14/1/02 …" (T documents, page 279). Mr Brockwell agrees that he said that he wanted Slidell to get the carryover. I am satisfied that Mr Brockwell said those words to Ms Luttrell.
The difficulty is what was meant by those words. Ms Luttrell interpreted them in the way set out in her statement, repeated in her oral evidence and reflected in the manner in which she processed the QS1 forms. Her understanding is encapsulated in her file note from the period 14 to 15 January, 2002:
"Spoke to Steve Brockwell regarding Criterion Pty Ltd seasonal transfer and advised that Criterion Pty Ltd did not hold the quota that David Fowler did and that I was not able to transfer the quota and also that I had spoken to David Fowler on the 17/12/01.
I suggested that if he was able to arrange another transfer from David Fowler to David Wilkins before the 15/1/02 that it would be able to the processed.
I also faxed to him an Application to transfer the permit – Wilkins to Slidell Pty Ltd as we had not received any paperwork for the transfer of the permit.
Seasonal quota transfer received and processed 15/1/02.
David Wilkins was over quota and an available balance of 7137.98 Kilograms only was available to transfer. I spoke with Steve Brockwell to make sure that he still wished to proceed with the transfer even though it was the 7137.98 not the full 12346 kilograms required as per the transfer form.
He said he wanted Slidell Pty Ltd to get the carry-over and to proceed with the balance (7137.98 kg's) of the quota to be transferred to Slidell Pty Ltd.
He also knew at this time that the transfer of the permit (and the permanent quota) was not going to happen in the 2001 season as AFMA had not received the paperwork to do so and the final date for transfer of permanent quota was the 15/12/01." (T documents, page 284)
Mr Brockwell's understanding is encapsulated in his letter to Mr Wilson of 5 February, 2002, which read in part:
"It was clear from the QS1 on the 17th December 2001 and my understanding that all and both quota transfers would be transferred to Slidell Pty. Ltd. permit 25872 B Jupana UD9, together for the 2001 carryover for 2002." (T documents, page 283)
Having regard to the QS1 forms, the correspondence and Mr Brockwell's evidence, it seems to me that he has been consistent in his intentions as to what he wanted to happen to the quota. What he wanted was that the permanent and seasonal quota would be transferred from Mr Wilkins to Slidell in one transaction so that Slidell had the benefit of a carryover based on a TNQH of 49,599kg in the 2002 season. He had clearly marked that transfer as occurring in the 2002 season. At the same time, he had clearly marked the transfer from Criterion to Mr Wilkins as occurring in the 2001 season. The transfer from Mr Fowler to Mr Wilkins was marked as occurring in the 2001 season. The QS1 forms did not on their face request a transfer from Mr Wilkins to Slidell in the 2001 season of all or any part of the quota.
In his statement, Mr Wilson said that AFMA accepts verbal instructions from quota holders but only does so in order to facilitate their transactions. He and his staff, including Ms Luttrell, are prepared to accept on verbal instructions given to clarify or confirm the intentions of parties. Verbal instructions departing from written instructions would normally be required in writing. Both Mr Wilson and Ms Luttrell confirmed this in their oral evidence.
Mr Wilson described Ms Luttrell's work and her qualities in his statement:
"… Ms Luttrell has been responsible for maintaining the SSF, SENTF, Great Australia Bight (Quota) Fishery and South East Trawl Fishery Register since their inceptions. Ms Luttrell now processes more than 4,500 separate applications across these fisheries annually and, as far as I am aware as her supervisor, has not been the subject of any complaint from any operator while I have managed the Licensing area. I have complete confidence in her understanding of the processes involved in maintaining the registers and her conscientiousness to act in accordance with the applicants' intentions, especially those not familiar with the system. This conscientiousness is reflected in the many expressions of gratitude she receives from applicants regarding her attention to detail." (Exhibit 2, paragraph 21)
I have no reason to demur from Mr Wilson's description and Ms Luttrell impressed me as a careful and conscientious officer of AFMA. What I am about to say does not diminish that view in any way. On this one occasion, I find that she interpreted the QS1 forms with hindsight, as it were, rather than looking at them in the order in which they were intended to be processed and was clear from their face in that one related to the 2001 season and the other to the 2002 season. It was clear that all of the seasonal and all of the permanent quota was to be transferred from Mr Wilkins to Slidell for the 2002 season. It was only the seasonal quota that was to be transferred from Criterion (but properly Mr Fowler) to Mr Wilkins in the 2001 season. Instead, Ms Luttrell, looking at the QS1 forms after the close of the 2001 season, saw that Mr Wilkins had overcaught his quota by 5,208.02kg. That meant that he had undercaught his TNQH after the transfer of seasonal quota by 7,137.98kg. Knowing that the quota was to rest finally with Slidell, she asked Mr Brockwell what to do with it. Having heard him say that he wanted Slidell to get the carryover, she interpreted that as meaning that he wanted Slidell to get what was unused by Mr Wilkins in the 2001 season. In doing so, she effectively separated the seasonal quota from the permanent quota that was to be transferred to Slidell in the 2002 season and transferred it to Slidell in the 2001 season. That was something quite different from that which had been requested in the QS1 forms. Ms Luttrell acted with the best of intentions but she misunderstood what was intended. Her misunderstanding was reinforced by Mr Brockwell's words which, from her point of view, can be taken as endorsing her view. Slidell was given the carryover. Having regard to the overall context I am, however, satisfied that it was an incorrect view.
I am satisfied that the QS1 forms, as finally and properly completed, required AFMA to transfer 12,346kg of leased seasonal quota from Mr Fowler to Mr Wilkins for the 2001 season. They then required AFMA to transfer the permanent quota of 37,253kg and the leased seasonal quota of 12,346kg from Mr Wilkins to Slidell but only in the 2002 season.
On the basis of Mr Wilson's evidence in his statement and in that given orally, I find that AFMA has a policy that it does not permit alteration of the Register for the SSF. Mr Wilson said that the policy was based on the need of AFMA to close trading, to carry out the reconciliation processes and to determine whether to take any action regarding overcatches. Operators were keen to have the matter finalised as soon as possible for each day that passes without carryover is another day that they cannot fish and their fishing operations may be interrupted or delayed. To accept alterations where no circumstances exist other than a mistake on the part of an operator would be unfair and inequitable to other operators. Where a late application involved a "string of transactions involving many parties", that would cause difficulties for a number of operators. In his minute to the delegate dated 18 April, 2002, Mr Wilson expressed further reasons for maintaining the integrity of the Register:
"The efficient administration of annual permits and quota allocations requires the imposition of dates for registry closures. Levy invoices are generated and issued by AFMA Business/Licensing section from 16 December, as applications for renewal of permits are received. This allows permits and quota to be mailed before Christmas and enables operators to fish from 1 January.
Departure from this timeframe would disrupt licensing and levying procedures. If AFMA accepted late applications to transfer permanent quota units after 15 December and before 1 January, it would require the permits, quota holdings and levy notices already issued for each party to be recalled.
Further, it would require the levy liability issued to be either refunded or (if it is not cost effective to pursue the debt) written off. AFMA has no legislative powers to waive a levy. A refund for a levy requires a special regulation to be promulgated.
All permit holders were advised by AFMA of the register closure in a letter dated 13 December 2001 (copy at Attachment K).
I have received at least two requests from other operators to accept late applications for seasonal leasing after the register closed. I declined these request on the grounds that it would not be fair and equitable to other operators and carried the potential for administrative inefficiency in AFMA's administration of the quota registers and carryover processes." (T documents, page 295)
That brings me to AFMA's policy that it not alter the Register after 15 January in any year. It is a policy and not a requirement of the Act that would be binding upon me. The weight that should be given to policy was considered by Davies J in Skoljarev v Australian Fisheries Management Authority (1995) 39 ALD 517. His Honour considered previous authorities and went on to say:
"… Absent a statutory provision requiring compliance with policy, a decision-maker may depart from policy and, in an appropriate case, should do so. It is impossible to define or delineate the circumstances in which departure from policy is justified. Much depends upon the nature and context of the decision to be made, the nature of the policy to which regard is to be had and the nature of the individual circumstances to which attention is directed. In Re Drake (No 2), Brennan J said at 645 that, because of the part which policies play in fair administrative decision-making, the AAT should apply a lawful policy "unless there are cogent reasons to the contrary" such as "injustice in a particular case". In Re Evans and Secretary, Department of Primary Industry (1985) 8 ALD 627, Davies J and Mr R A Sinclair spoke of "special or unique circumstances". No term will in itself adequately express the point. The decision must be made having regard to the decision and its context, the nature and ramifications of the policy and the nature and consequences of the individual circumstances which are relied upon.
When, in Drake (No 2), Brennan J spoke of "injustice in a particular case", his Honour did not have it in mind that the matter should be governed entirely by the hardship to the individual. At 645, his Honour said:-
"Injustice, in the context of ss 12 and 13 of the Migration Act, must mean a disproportion between the detriment suffered by those affected by the execution of a deportation order and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community if the order were affirmed."
Necessarily, each matter must be judged by weighing up the particular circumstances of the case in the light of the part which the policy plays in the overall context of the decision to be made. In Discretionary Powers, at 169, Galligan spoke of the optimum balance between "settled standards", whether they be stipulated in advance or developed incrementally, and "the particular case", and went on to mention how difficult it can be to find that optimum balance." (pages 522-523)
Bearing these principles in mind, I have concluded that there are circumstances that require me to depart from AFMA's policy in this case. Whether those circumstances are described as giving "cogent reasons" or "special or unique circumstances" is not a debate into which I wish to engage. The circumstances that prevail in this case comprise, in part, AFMA's policy and the reasons that it has given for its prevailing. They also comprise what I have found to be an error on the part of AFMA in processing transfers submitted by Mr Brockwell well before 15 January, 2002, its earlier failure to notify him that there was a difficulty with those transfers, the consequences for Mr Wilkins and Slidell of not departing from the policy and the consequences for AFMA of departing from the policy. In relation to the consequences for Slidell, the consequences are significant. Rather than Mr Wilkins' having the benefit of a carryover of 7,137.98kg for the 2001 season and transferring that carryover to Slidell for its use in the 2002 season, Slidell was entitled to a carryover of only 1,427.59kg for its use in the 2002 season. That has a significant economic impact for Slidell. There is no evidence that amendment of the Register to correct AFMA's error would have any impact at all upon other operators in the SFF. Their quotas will be unaffected as will the TAC for the fishery. Amendment would not give other operators the impression that they could ignore AFMA's deadline of 15 January for Mr Brockwell had lodged the QS1 forms before that date. If levy liabilities are altered, they will be altered only as between Mr Wilkins and Slidell and they would expect to pay whatever levy is appropriate. Amendment in these circumstances would not carry with it the potential for administrative inefficiency in AFMA's administration of the quota registers and carryover processes but would, instead, be conducive of more effective administration and enhance the industry's confidence in the system of administration.
For these reasons, I:
1.set aside the decision of the respondent dated 2 May, 2002 affirming an earlier decision dated 8 February, 2002; and
2.substitute a decision that:
(1)the Register for 2001 for the Southern Shark Fishery be amended to show a transfer of seasonal quota of 12,346kg from Mr David Fowler to the applicant, Mr David Wilkins; and
(2)the Register for 2001 for the Southern Shark Fishery be amended to delete any transfer of quota, seasonal or permanent, from the applicant, Mr David Wilkins, to the party joined, Slidell Pty Ltd.
I certify that the fifty-seven preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),Signed: …………………………………..
Paul Paczkowski Associate
Date of Hearing 6 September, 2002
Date of Decision 16 September, 2002
For the Applicant and Party Joined Mr Brockwell
Solicitor for the Respondent Ms Dornau
Ladbray Consortium
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