Woodward v Minister for Fisheries

[2000] NSWADT 143

CITATION:	Woodward -v- Minister for Fisheries [2000] NSWADT 143
DIVISION:	General Division
PARTIES:	APPLICANT David James Woodward RESPONDENT Minister for Fisheries
FILE NUMBER:	003123
HEARING DATES:	5 September 2000
SUBMISSIONS CLOSED:	09/12/2000
DATE OF DECISION:	10/13/2000
BEFORE:	Smith MB - Judicial Member
APPLICATION:	Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Fisheries Management Act 1994
CASES CITED:	Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1970) 127 CLR 106 Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1995) 182 CLR 51 Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 Comptroller-General of Customs v ACI Pet Operations Pty Ltd (1994) 49 FCR 56 Puglisi v Director, NSW Fisheries [2000] NSWADT 105 Thornton v Minister for Fisheries [2000] NSWADT 31 Bourke and Others v Commissioner of Police [1998] NSWADT 1 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1
REPRESENTATION:	T Bates, barrister C Cory, solicitor
ORDERS:	1. The decision of the Minister refusing to issue the applicant with an endorsement with respect to the Estuary General Restricted Fishery - Hand Gathering is set aside; 2. In substitution, it is decided that the matter is referred to a review panel for further consideration taking into account the Tribunal's reasons for decision

1 The applicant in this case seeks review of a decision which refuses to give him a “hand gathering endorsement” on his commercial fishing licence. This would authorise him to take beach worm, pipi, cockle, yabby and mussel for sale from estuarine water and ocean beaches by the method of hand picking. He has made a livelihood as a commercial fisherman on the Hunter river and estuary since 1980, and at all times prior to 1997 he enjoyed the right to engage in fishing of this sort. In fact, from time to time, he has obtained income by taking beach worm, pipi and mussels to supplement income from his other fishing activities as well as to provide bait for those activities.

2 In 1997 Division 2C was inserted in the Fisheries Management (General) Regulation 1995 made under the Fisheries Management Act 1994 (NSW) (“the Act”). This had the effect of making “the estuary general fishery” a restricted fishery, so that under s 112 of the Act the applicant’s commercial fishing licence no longer authorised him to take fish for sale in that fishery unless he was “authorised by the Minister, by an endorsement on the licence”. Section 113(2) provides that eligibility for an endorsement “is to be determined in accordance with the regulations”.

3 The estuary general fishery is defined in reg 191K as consisting of the taking of fish “from estuarine waters by any lawful method other than prawn trawling” and “from ocean beaches by the method of hand picking”. “Fish” is defined very broadly in s 5 of the Act so as to include beachworms, shellfish etc. Regulation 191M provides for nine different types of endorsement in this fishery, each with its own eligibility requirements which, broadly, require proof that an applicant for endorsement has a history of a particular activity.

4 The applicant’s present licence shows that he has been able to obtain endorsements in the above fishery of the following types: handlining and hauling crew, meshing, trapping, eel trapping, and mud crab trapping. In other fisheries, he has endorsements giving him authority to engage in ocean prawn trawling inshore, ocean line fishing, and Hunter River prawn trawling (see Exhibit 2 p.6).

The eligibility criteria

5 The prescribed eligibility requirements for a hand gathering endorsement are found in reg 191N:

“191N Eligibility for endorsement
(1) General requirements. The general requirements for an endorsement are that the person:
(a) owns a licensed fishing boat that is suitable for use in the restricted fishery, and
(b) has submitted to the Director at least 12 estuary waters catch returns in any 4 years (not necessarily consecutive) from 1986 to 1993, and at least one of those returns relates to a month prior to January 1991.
…

(8) Hand gathering endorsement. A person is eligible for a hand gathering endorsement if the Minister is satisfied that:

(a) the person holds a commercial fishing licence that is subject to a condition known as a ``beach worm only'' condition, or
(b) the person fulfils the general requirements for an endorsement and submitted to the Director at least 8 ocean waters or estuary waters catch returns in the years 1986 to 1993 that indicate a catch of beach worm, pipi, cockle, yabby or mussel and at least one of those returns relates to a month prior to January 1991.
Any ocean waters or estuary waters catch return that records cockle as catch and prawn trawling as the only catch method is not to be counted toward the criteria set out in paragraph (b).
…

(11) If the Minister is satisfied that the catch history associated with a fishing business satisfies any of the eligibility criteria set out in the clause, the owner of the fishing business is taken to have satisfied the criteria, even if the owner did not personally take the fish for sale or submit any catch returns to the Director. In such a case, however, the person who actually took the fish for sale or submitted the returns (for example, while working as an employee of the fishing business) does not, by having done so, satisfy that criteria.
(12) In determining a person's eligibility for an endorsement, the Minister may have regard to the records kept by the Director (including records of net registration, licence records and records of fish taken by a commercial fisher).
(13) The catch history associated with a fishing business is to be determined in accordance with clause 135 (3).
(14) In this clause:
estuary waters catch return means a return under section 42 of the 1935 Act that relates to takings of fish in estuarine waters.
ocean waters catch return means a return under section 42 of the 1935 Act that relates to takings of fish in ocean waters.”

6 The reference to the 1935 Act is to the predecessor to the present Act, which for most of its history was known as the Fisheries and Oyster Farms Act 1935 (NSW). Section 42 empowered the Minister to Gazette notices requiring people to lodge returns as to their catch, sales and gear, and for very many years such notices have required commercial fishermen to lodge monthly returns. Regulations prescribed the form of returns, so that under 1989 regulations the forms for fish and shellfish were known as “Form 19”s, and under the previous regulations they were known as “Form 49”s.

7 These returns provided an obvious starting point from which a fisherman’s history of activities could be determined, and, as is illustrated in the above regulations, were given conclusive effect in the primary eligibility criteria for many endorsements. However, the regulations also recognised that in particular cases it could be unfair to hold a fisherman strictly to what appeared on returns lodged years before they were given critical importance to his right to continue in his livelihood. Many fishermen are not proficient in clerical work, and gave the accurate completion of their returns little priority. Some fishermen cannot read and write and are dependent upon clerical assistance from others. Moreover, where eligibility criteria focus upon a few years in a long history of fishing activity, the returns for those years might not fairly reflect a fisherman’s commitment to particular fishing activities, but have been distorted by short term events affecting the general viability of a type of fishing or a fisherman’s own ability to engage in it.

8 The 1997 regulatory scheme addresses in two ways the problems of inaccurate returns and special circumstances making a strict application of eligibility criteria inappropriate. First, they define circumstances in which applicants can be deemed to be eligible notwithstanding that they do not, in fact, satisfy eligibility criteria based on the lodgement of a specified number of returns or (in some fisheries other than the present) of returns showing a defined total catch. Secondly, they set up a special decision-making procedure for invoking these extended eligibility criteria (my term) which are available only to persons who sought entry to the restricted fishery at the time of its commencement, i.e. in late 1997. Moreover, the role of deciding at first instance whether the extended eligibility criteria are satisfied was given to a special “review panel” rather than to the Minister’s delegates in the Fisheries Department who have the primary decision-making power to give or refuse an endorsement.

9 I shall not detail these special procedural provisions which are found in regs 214A to 214E, although I shall need to return to them below when deciding the ambit of my own powers of review. The statutory procedure is illustrated in the history of decision-making in relation to the present applicant which I shall outline below. It is enough to note at this point that a review panel consists of three members who are, in effect, a Departmental officer or nominee, a person “with extensive practical experience in the commercial fishing industry” and a chairperson who is not currently engaged in either activity. This constitution indicates a desire for judgments on the extended criteria to make use of special expertise and a degree of independence from the Fisheries Department. The absence of any procedural provisions indicates that the review panels were expected to operate flexibly and informally in reaching their decisions.

10 The extended eligibility criteria are set out in the decision-making power given to a review panel in reg 214C(2) to decide whether a person who is not eligible “should be eligible for an endorsement”. I shall set out the whole regulation, italicising the criterion which is invoked by the present applicant.

“214C Grounds for review
(1) A panel that conducts a review may consider any circumstances that are relevant to the determination that is the subject of the review request.
(2) A panel that conducts a review may decide that a person is eligible for an endorsement in a restricted fishery, or should be eligible for an endorsement in the fishery, if the person who applied for the review satisfies the panel:
(a) that the records relied on to make a determination whether the person is eligible for an endorsement (for example, catch history records or records of net registration) are, for reasons that are not attributable to the fault of the person, inaccurate or incomplete and, on the basis of verified records produced to the panel by the person, the person does in fact satisfy the eligibility criteria for the endorsement, or
(b) that a determination as to the catch history associated with the person's fishing business is incorrect and, on the basis of verified records produced to the panel by the person, the person does in fact satisfy the eligibility criteria for the endorsement, or
(c) if eligibility is based on the person's activities in a fishery during a particular period, that:
(i) the person suffered illness or other incapacity for a significant period and the illness or incapacity substantially affected his or her ability to satisfy the eligibility criteria for the endorsement, or
(ii) the person lost his or her commercial fishing boat due to accident or misadventure and the loss substantially affected his or her ability to satisfy the eligibility criteria for the endorsement, or
(iii) the person was engaged in fishing during that period and for other significant reasons (that are not attributable to the fault of the person) the person was unable to satisfy the eligibility criteria.
(3) This clause does not limit the inclusion in a report by a panel of any other decision or recommendation relating to a person's entitlements in a restricted fishery.
(4) In this clause, verified record means a document prescribed for the purposes of section 51 (4) of the Act (dealing with determination of catch history).”

11 A significant point of interpretation arises under subreg. (2), as to whether a panel is bound to decide that a person “should be eligible for an endorsement” once it reaches satisfaction in terms of one of the extended eligibility criteria described in paragraphs (a) to (c).

12 In my opinion, the regulation does have this effect. I consider that the opening use of “may” is clearly one of empowerment rather than discretion, so that a panel cannot refuse to decide that a person is eligible once it reaches satisfaction as to the eligibility criteria (c.f. Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1970) 127 CLR 106 at 134, Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1995) 182 CLR 51 at 85, 98). Given the role of the eligibility criteria as the determinants of whether existing fishermen could continue to exercise their right to fish, it is inconceivable that the Regulations intended a panel (or the Minister) to be able to refuse to decide that a person was eligible and thereby prevent an endorsement being granted once it was satisfied as to all relevant criteria (and assuming satisfaction of all other statutory requirements).

13 The same reading of “may” should then apply in relation to the power to decide whether a person “should be eligible” notwithstanding that the primary eligibility criteria are not satisfied. To give “may” a different reading in relation to the extended eligibility criteria would be inconsistent with the scheme of the regulation. Moreover, the words “should be eligible” do not in themselves import a discretion outside the terms of the extended eligibility criteria, since they are used merely to distinguish the power to decide whether a person “is eligible” (note also how the distinction is used in reg 214D(2)).

14 The interpretation excluding a general discretionary consideration on whether an endorsement should issue is, in my opinion, indicated by the content and object of the extended eligibility criteria. The specification in 214C(2) of defined conditions addressing particular grounds for not insisting on strict eligibility, culminating in the broadly worded recognition of “other significant reasons”, indicates that the Panel’s power was intended to be circumscribed to deciding whether one or more of either the primary or of the extended eligibility criteria have been satisfied. Once it becomes so satisfied, its power of decision under reg 214C(2) is complete, and no further discretionary judgment arises. It is then obliged to report its satisfaction to the Minister, together with such other decisions or recommendations as it might think appropriate to include in its report pursuant to reg 214C(3). The absence of an unfettered discretion means that it is irrelevant, and distracting, for a review panel to consider whether or not a person deserves or needs the endorsement based on circumstances outside the extended criteria described in paragraphs (a) to (c).

The issues in the present case

15 I have italicised reg 214C(c)(i) since this provision is the focus of the present case. It is common ground that the present applicant satisfies the “general requirements” in reg 191N(1) and that he fails to satisfy reg 191N(8)(b) because he submitted only 3 catch returns between 1986 and 1993 indicating (or which may be taken to have indicated) a catch of the requisite shellfish. One of these “relates to a month prior to January 1991” as required by this criterion.

16 In the evidence tendered to me the applicant sought to establish that in June 1993 he sustained an injury which incapacitated him from pipi gathering for the remainder of that year so as to have “substantially affected his ability to satisfy” the remaining eligibility requirement of an additional 5 monthly returns showing shellfish gathering before the expiry of the 1986-93 period. I shall outline the evidence presented to me and my findings upon it, after narrating how the applicant’s claim for the endorsement has been dealt with in the decision-making leading to the proceedings in this Tribunal.

The history of the application

17 Background to the 1977 regulations was contained in a written submission passed to me at the conclusion of the hearing. This was an unsatisfactory way of informing the Tribunal on relevant factual background, and it would have been preferable to have done this by way of a Departmental witness whose statement would have been provided to the applicant prior to the hearing and who would then have been open to cross-examination. Had the submission asserted anything controversial I would have given it little weight. However, the history recounted in the submission is consistent with the applicant’s evidence that his fishing activities, at least prior to 1995, were conducted without much concern that they would or might in the future limit the extent of his fishing rights.

18 The respondent says that a licensing policy which was adopted in June 1994 after consultation commencing in January 1994 warned newly licensed fishers that they would be restricted to areas where they could demonstrate a historic level of participation. The actual content of these warnings was not in evidence, but it would seem reasonable to assume that fishers who could trace full-time fishing operations back for decades would not have felt under threat. The applicant gave evidence, which I accept, that at this time he did not believe that he might be debarred from access to any type of fishing covered by his then licence. This is an important point, when considering what inferences about his hypothetical illness-free 1993 activities can be drawn from his fishing returns for 1994.

19 Established fishers are likely to have heard in late 1995 at the earliest of a firm proposal to limit their fishing rights. In this respect, the respondent’s submissions says:

“The Minister advised CFAC on 28 September 1995 of his intention to implement a restricted fisheries regime. Meetings were held along the coast to explain the proposals to fishers and on 7 October 1995 a public notice appeared in the Sydney Morning Herald inviting comment. The restricted fisheries criteria, being the number of restricted fisheries proposed, types of species to be included and historical years for participation was developed in consultation with industry. Steering committees for each proposed restricted fishery, consisting of representative commercial fishers, recreational fishers and staff of the NSW Fisheries met and drafted criteria for each fishery in late 1995, which were published in the NSW Fishermen Magazine in the January/February 96 issue. The magazine was sent to all fishers with a letter requesting submissions on the draft criteria. Revisions and further submissions took place in July 1996 and February 1997. Through these negotiations the criteria years for eligibility to restricted fisheries was determined to be between 1986-1993. Pursuant to section 111 FMA in March 1997 five restricted fisheries were declared…”

20 Part of the above process, included inviting existing fishers to obtain a “validated catch history assessment”. This entailed the Department researching past fishing returns so as to compile a computer data base and analysis covering the 1986 to 1993 years. The applicant applied for catch validation in March 1996, and a report was provided in July 1996. This shows a simple picture of a fisherman who has been licensed since 1980, and who throughout the period has continuously fished the Hunter river area using his own equipment in a wide variety of fishing methods, including the gathering of relevant shellfish for sale in January 1993 and possibly also in October 1987 and April 1988.

21 In October 1996 he applied for entry in relation to the foreshadowed restricted fisheries, and it is this application which, in relation to the hand gathering endorsement, was the initiator of the decision-making leading to the present Tribunal proceedings. Over the ensuing years other endorsements have been granted under the same application but it is unnecessary to recount the decision-making history concerning them. The applicant was given the benefit of a hand gathering endorsement for the period while his appeal was pending before the Review Panel.

22 He was notified of the refusal of the endorsement by letter dated 17 February 1997. On 11 April 1997 he lodged an appeal against this decision as well as against the refusal of endorsements for eel trapping and prawning. He (or someone on his behalf) expressed his reasons as follows:

As I am unable to read and write, I am unable to fill out paperwork such as fishing returns and have to rely on others to do this for me, occasionally wrong entries are made that went undetected, and this has affected my eligibility for entry to the above fisheries in question. For example handline hairtail which I have caught were inadvertently entered on the wrong return and some methods of fishing have been incorrectly entered for eels. I feel strongly that I should be allowed to continue to fish for eels as I have, in the past, held a special permit to catch them. Regarding the pipi fishery I have a history of catching pipis both prior to and following these dates. During the criteria period my 4WD vehicle, which is needed to access the beach broke down beyond repair and I was financially unable to replace it at the time. This meant that I was unable to fish in this area until I was able to purchase another vehicle. In July 93 I suffered a severe accident to my R leg and was unable to work at all for 6 weeks and then had difficulty working for a long time following this. This has had a significant impact on my catch returns. I have been a professional fisherman for many years. Fishing in the estuary is seasonal and this, as well as severe product market price fluctuations, species availability, weather and climatic conditions, has meant that I have had to do a little of everything to survive and support my family. Because of this I feel that I am now being severely disadvantaged. (Exhibit 1 p.55)

23 The Department’s file shows a re-examination of the applicant’s catch returns and an internal review, leading to a decision to “contest” the giving of a hand gathering endorsement on the basis that “Mr Woodward must substantiate further participation … before he would be eligible for endorsement in these fisheries” (see Exhibit 1 p.51). This assessment does not appear to distinguish between the primary eligibility criteria and the extended eligibility criteria.

24 In November 1998 the chairperson of the Review Panel wrote to the applicant saying:

I am writing regarding your request for a review of the restricted fisheries endorsements allocated to your fishing business (FB), FB 1178. The review panel has requested that I advise you of their deliberations.

The panel is not satisfied that it should recommend allocation of an ocean trap and line restricted fishery, line fishing western zone endorsement and estuary general restricted fishery; eel trapping and hand gathering endorsements at this stage. ….

Estuary return 9301 is the only return which lists hand gathering as a method and indicator species as the catch. To qualify for the estuary general hand gathering endorsement you are required to provide evidence of a further 7 ocean or estuary hand gathering returns between the years 1986 and 1993. At least one of these returns should be prior to 1 January 1991 and all returns should list at least one of the following species as catch; beach worm, pipi, cockle, yabby and mussel. Cockles or other indicator species taken by trawling will not be counted towards the criteria….

If you rely on injuries restricting your fishing activity as a reason for not meeting the criteria targets, you should support that with medical certificates or specific information on times and types of fishing lost.

Any evidence to address the above requirements and to support your claim in any way should be forwarded within 30 days of the date of this letter for consideration by the panel….

If you choose not to contact the Department within 30 days from the date of this letter then no further assessment of your review application will be undertaken. Your application will proceed directly to a hearing based on the evidence previously provided. This is your last opportunity to provide additional documentation prior to proceeding to a hearing. If you choose to provide additional supporting documentation the review panel will re-assess your application taking into consideration your evidence submitted. Please note that any written objective evidence may strengthen your case. You will be notified of the review panel’s deliberations following their reconsideration of your case.” (Exhibit 1 p.45)

25 The applicant did not respond to this letter. On 14 January 1999 he was informed that his application was listed for hearing on 12 February 1999 at the Raymond Terrace Courthouse. It would seem that he attended in person, and presented some supporting evidence for amendments to his catch history. Forty three other appeals were listed on the same day, with 18 being “finalised” (Exhibit 1 p.30). Following the hearing the chairperson reported to the Minister:

The Panel considered returns 8710, 8804, 9301 and the applicants medical condition during June, July, August and September 1993 but is not satisfied that he meets the criteria for an Estuary General Restricted Fishery Hand gathering Endorsement and recommends to the Minister that that application be refused.” (Exhibit 1 p.31)

26 There is no further evidence of the review panel’s consideration of the issues which arose for its determination under the strict and extended eligibility criteria which I have set out above. A statement of reasons signed in March 2000 by the “solicitor for the administrator” attributes in paragraphs (C)(ii) and (v) some additional reasoning to the Panel, but I am reluctant to rely upon these assertions in the absence of any supporting evidence on the file or otherwise presented to me that the Panel members indeed made findings and reasoned in the terms asserted.

27 Even more cursory is the evidence of what consideration to the applicant’s extended eligibility was given by the Minister and his Department before he personally accepted the review panel’s recommendation. The minute which he signed on 5 March 1999 said merely “Recommendations submitted by Ms Jennifer O’Brien, for the Minister’s signature, pending approval”, and attached the panel’s recommendations and a summary (Exhibit 1 p.29).

28 There was an unexplained delay before the applicant was informed of the decisions of the Review Panel and of the Minister. In a letter to him dated 14 December 1999 he was told merely “in accordance with the recommendations of the review panel the Minister has refused your application for the … Hand Gathering Endorsement”. That letter informed him that he could apply to the Tribunal for a review of “this decision”, but that he “must first write to NSW Fisheries requesting that the Department completes an internal review of the decision” (Exhibit 1 p.27). [I note that since March 2000 this requirement has been excluded in cases such as the applicant’s by reg 6A(f) of the Administrative Decisions Tribunal (General) Regulation 1998.] I note that the letter is vague as to whether the applicant could or should apply for review of both the Review Panel’s decision and the Minister’s decision.

29 The applicant wrote on 7 January 2000, saying “I wish to request an internal review of the decision of the Ministers refusal to grant application for the endorsement: Estuary General – Hand gathering” (Ex 1 p.21). He later provided some supporting statements by witnesses who had seen him collecting beach worms and had been supplied with worms for the bait trade.

30 By letter dated 22 March 2000, the applicant was notified: “I hereby confirm the original decision relating to the estuary general restricted fishery hand gathering endorsement. This endorsement can not be issued to you as the fishing business fails to satisfy the criteria as outlined by the Fisheries Management (General) Regulation 1995” (Exhibit 1 p.13). The letter is unclear who decided this, being signed by Megan McCullough for the Acting Director of Fisheries. I note that Ms McCullough was the officer who in 1998 had previously recommended that the Department should contest the applicant’s appeal to the review panel.

31 The applicant then, on 27 April 2000, lodged his appeal to this Tribunal. His application identifies the decision he wishes to have reviewed by attaching the statement of reasons which he had been sent with the above letter. This has been framed on the basis that the decision internally reviewed was only the decision taken in the name of the Minister.

Findings on the applicant’s case

32 The applicant gave evidence on affidavit, which he supplemented with oral evidence. His evidence was tested by questioning by both the respondent’s representative and myself. Although he had some difficulties in dating events from his memory and in responding clearly to questions, I formed the opinion that these were a reflection of his personality and lack of education. His evidence found corroboration in the file and other documentary evidence tendered, and was not significantly contradicted by it. I accept him as an honest and credible witness. I find that generally he did not seek to exaggerate or embellish his evidence nor the case he presented through his legal representatives. Of course his speculations upon what his fishing activities might have been if he had not been injured in June 1993 need to be independently examined. However, I consider that his opinions on these matters deserve to be given considerable weight. His wife was also called to give brief evidence, which I accept in its entirety.

33 From the evidence, I make the following findings. The applicant is 47 years old. He operated a prawn trawler between the ages of 18 and 20, and then took up builder’s labouring work. He returned to commercial fishing in 1980 when he purchased his present prawn trawler. He also uses two small boats for meshing, crabbing and handlining in enclosed estuary waters. To supplement his income from prawning he has engaged in hand gathering pipi. To corroborate the length of this involvement, he tendered fishing returns and Co-operative dockets for June and July 1985 showing sales of pipi. Within the criteria period he had provided corroboration of sales in October 1987, April 1988 and January 1993. After the criteria period, his returns show sales of pipi in January, September, October, November and December 1994. His returns were compiled by his daughter and wife solely from dockets he obtained from the Co-operative. As well as the recorded sales, he has often taken pipi and beach worm for his own use.

34 The applicant explained how pipi were taken by hand on Stockton Beach. On his description of the physical demands of the activity, I have no difficulty accepting that gathering pipi involves repeated and active use of the knees both in feeling for pipi beds and when crouching to collect them. Access to the beach necessitated a 4WD vehicle, and there was a period when his financial position left him without such a vehicle. On his wife’s evidence, which I prefer to that of the applicant, this occurred prior to 1991, when they acquired a Toyota vehicle.

35 The applicant tendered records from the Newcastle Mater Misericordiae Hospital showing that he attended the emergency department in the afternoon of 20 June 1993 via ambulance. He had sustained a large laceration to the right knee requiring X-ray, sutures and review. He returned on 21 and 24 June and 11 July, when it was observed “the wound had healed and the patient was advised gradual mobilisation and advised to be careful on standing”. The applicant was immobilised for about one month, and then used crutches for a further two weeks. As a result of the damage to his muscle, he was unable to bend his right knee, unable to climb, walk any distance or carry any weight. After a time be experienced problems with his left knee, which became painful as a result of favouring the right knee. His mobility was restricted at least until January 1994, and he was prevented from being able to engage in hand gathering fishing activities at all for at least that period. Although he recommenced fishing in October, this was limited to using his boats and he needed the assistance of deckhands and his daughter. He was restricted to steering the boat only. His operations continued in a restricted manner until the early part of 1994 “when I was gradually improving to the extent that I could do more of the work myself”. The hand gathering carried out in January 1994 was performed over four days “and carried out with much difficulty and discomfort by reason of my right leg injury”.

36 This account appears to me to be consistent with the applicant’s fish returns for this period of 1993. These show him submitting a catch of mullet taken over two days in June and then being “unable to work rest of month”. No work in July. One day in August, mesh netting mullet. The same in September. Twenty days in October mesh netting mullet and prawn trawling. Thirty days in November prawn trawling, mesh netting and crab and eel trapping. And twenty nine days in December prawn trawling, mesh netting and trapping.

37 The evidence presented to me appears to be more extensive and better corroborated than that which was presented to the Department and Review Panel. I consider that it sufficiently establishes that the applicant sustained an injury in June 1993 which prevented him from engaging in hand gathering for the remainder of that year. In the context of the criteria in reg 191N(8)(b), I consider that this incapacity must be found to have been suffered “for a significant period” within reg 214C(2)(c)(i). In this respect, I would understand “significant” to have the dictionary meaning “of consequence”. Any period of seven months incapacity from illness must be “of consequence” objectively in the context of a criteria requiring only 8 monthly returns. In relation to the applicant’s particular circumstances, this particular period is “of consequence” since he was theoretically capable of satisfying the strict criteria by engaging in hand gathering during that period.

38 A further issue arises under reg 214C(2)(c)(i), which is whether the applicant’s incapacity “substantially affected his ability to satisfy the eligibility criteria”. There is some vagueness in this language. The word “substantially” is especially prone to shades of meaning which depend upon context (c.f. Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 at [26]). Here, I consider it has shades of meaning both of “materially” and “in the main” (c.f. OED meaning 4: “in all essential character or features; in regard to everything material; in essentials; to all intents and purposes; in the main”). “Affect” has the dictionary meaning of “produce an effect or a change in”. “Ability to satisfy the eligibility criteria” refers to personal capacities which would have been needed to perform the activities needed to complete the person’s satisfaction of particular criteria.

39 I accept that it may be relevant to consider the likelihood that, but for his illness, the person would have performed activities which, together with relevant activities outside the period of incapacity, would have satisfied the eligibility criteria. However, in my opinion such a judgment is not necessary nor determinative. The language of “substantially affected his ability to satisfy” seems to demand less than satisfaction that incapacity in fact caused the failure to satisfy the criteria. It is enough to decide that his ability to qualify was “substantially affected” by a period of incapacity. In effect, once this is established, an incapacitated fisherman is to be given the benefit of uncertainties as to whether other factors might also have affected his ability to qualify and as to whether in fact he would have qualified.

40 In the present case, the applicant is of the opinion that “in all likelihood”, had he not had his injury, he would have taken at least one catch of pipi in five of the seven months in which his activities were limited. In support of this opinion he points to his modus operandi as a fisherman: to use a wide range of estuary fishing methods to take whatever catch appeared best available and marketable from day to day. His recollection is that around 1993 a market developed for pipi and “good” prices were obtainable, which made it an activity attractive to him on occasional suitable days. He recalls that this was the situation which prompted him to gather pipi on the occasions in January 1993 and in January and September to December 1994 as shown in his catch returns.

41 My own assessment of all the evidence is that it is highly probable that the applicant would have gathered pipi on several occasions during the period of his incapacity, and that there was a significant possibility that this would have occurred on sufficient occasions over the period to have allowed him to have accrued the requisite number of fishing returns during the remainder of 1993 to satisfy the strict eligibility requirements of reg 191N(8)(b). In reaching this conclusion I consider that I am entitled to give weight to the applicant’s subsequent pipi activities during 1994, particularly since, as indicated above, I consider they were not influenced by the prospect of a future closure of the fishery. Even where the rules of evidence prevail, a predictive judgment of this nature can be informed by hindsight (e.g. Comptroller-General of Customs v ACI Pet Operations Pty Ltd (1994) 49 FCR 56 at 78D). I consider that this finding, taken with my above finding that the applicant’s illness in fact rendered him incapable of taking pipi for the remainder of 1993, is sufficient to allow a conclusion that the illness “substantially affected his ability to satisfy the eligibility criteria” for a hand gathering endorsement.

42 My own conclusion on all the evidence before me is that the applicant satisfies the extended eligibility criterion of reg 214C(2)(c)(i). In this respect, it would not seem to be challenged by the respondent that the opening words of that provision: “eligibility is based on the person’s activities in a fishery during a particular period” are applicable in relation to the applicant’s satisfaction of reg 191N(8)(b).

43 As I have explained above, this conclusion, if reached by a review panel, would oblige it to decide that the applicant “should be eligible” for the endorsement presently in question, and to report to the Minister accordingly. The Minister would then be empowered to issue the endorsement, and would normally do so upon satisfaction of any remaining statutory requirements.

44 There are, however, difficult questions as to the powers of this Tribunal to review the present contrary decision of a review panel and to give effect to its own conclusion that the applicant “should be eligible” for a hand gathering endorsement because he has satisfied an extended eligibility criterion. I must now address these. Different approaches to have been taken within the Tribunal at first instance (compare Puglisi v Director, NSW Fisheries [2000] NSWADT 105 with Thornton v Minister for Fisheries [2000] NSWADT 31), and no Appeal Panel has yet considered them. In this situation, I have preferred to approach the issues afresh.

The powers of the Tribunal

45 Section 38 of the Administrative Decisions Tribunal Act 1997 (NSW) gives the Tribunal jurisdiction under an enactment to review a decision if the enactment provides that applications may be made to it for a review of any such decision. Section 8 provides that “a reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review”. Section 9(1) says “an administrator, in relation to a reviewable decision, is the person or body that makes (or is taken to have made) the decision under the enactment concerned.” Section 6(2) provides that “for the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment”.

46 The Tribunal has, under s 63 of the ADT Act, the duty to review the “reviewable decision” and to decide “what the correct and preferable decision is having regard to the material then before it”. For that purpose the Tribunal may exercise “all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.” In determining the application the Tribunal may decide “to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside.”

47 Contrary to the submissions of the applicant, I consider that s 63 of the ADT Act does not empower the Tribunal to go beyond the limitations on the powers exercised or available to the administrator who made the reviewable decision. This was earlier decided by the President of the Tribunal in Bourke and Others v Commissioner of Police [1998] NSWADT 1. In Kumsuz v Commissioner of Police (unreported, 23 March 1999), I followed this decision, saying:

“The Tribunal’s review powers conferred by s 63 of the Administrative Decisions Tribunal Act 1997 (NSW) are framed in terms which invite the adoption of the jurisprudence on the Commonwealth Administrative Appeals Tribunal’s powers under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth). It was established at an early time in the AAT that its powers “are measured by reference to the powers vested in” the primary decision-maker ( Re Callaghan and Defence Force Retirement and Death Benefits Authority (1978) 1 ALD 227 at 230).

In this respect, I note that the ADT’s duty is to “decide what the correct and preferable decision is having regard to the material then before it” (s 63(1)), whereas it has been held that the “question for determination” by the AAT is whether the decision which the decision-maker made “was the correct or preferable one on the material before the Tribunal” (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 per Bowen CJ and Deane J at 68, and c.f. Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 234; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 18). The change of language from “correct or preferable” to “correct and preferable” is mysterious, but in my opinion nothing turns on it. Both formulations confine the review tribunal to the legal limits on the primary decision-maker’s power, while freeing it from the decision-maker’s reasoning and investigations. If the power in question confers a discretion to identify and chose between relevant considerations, then the tribunal must reach a decision which is correct in its conclusions of fact and law and is also preferable on its merits. If the power allows no discretion, then the correct decision must necessarily be the preferable decision.”

48 To locate the Tribunal's substantive powers in an application it therefore becomes essential for the Tribunal first to identify one or more “reviewable decisions” brought before it on an application for review, identify who were the “administrator” or “administrators” who made it or them, and then identify the ambit and limitations of the functions conferred upon that or those persons when making their decisions. The Tribunal is then empowered by s 63 to exercise all those functions so as to arrive at the legally correct and preferable decision.

49 The “relevant enactment” in the present case is the Fisheries Management Act 1994 which, relevant to the present case, provides in s 126(1) (read with s 125) that “a person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned: (a) the refusal to issue an endorsement on a commercial fishing licence”.

50 The difficulties in the present situation arise because the regulations governing the issue of an endorsement share between the Minister and the review panel functions of primary decision-making as to satisfaction of the primary and extended eligibility criteria, and because they impose a limit on the Minister's ultimate power to issue an endorsement.

51 Fisheries Regulation 191O(3) empowers the Minister to endorse for the present fishery a licence only of a person who satisfies the primary eligibility requirements. If he refuses to do this, as in the present case, the person must request under reg 214A a review by the review panel, which then is empowered by reg 214C (set out above) to decide whether the person “is eligible for an endorsement in a restricted fishery, or should be eligible for an endorsement in the fishery”, and to report this to the Minister. The Minister then must make a decision pursuant to reg 214D, which provides:

“214D Action by Minister following review

(1) On receipt of a report by a panel, the Minister may:

(a) in accordance with the decision of the panel, confirm the determination that was reviewed by the panel or set that determination aside and substitute a new determination, or
(b) refer the matter back to the panel (together with comments or recommendations) for further consideration.
(2) The Minister may, following a review, determine that a person is eligible for an endorsement in a restricted fishery, even though the person does not satisfy the eligibility criteria for the endorsement, only if the panel decides that the person should be eligible for an endorsement. If the Minister makes such a determination, the person is taken, for the purposes of the provisions of this Part that deal with eligibility for an endorsement in the fishery concerned, to be eligible for the endorsement.
(3) A person who applies for a review under this Division is to be notified of the outcome of the application as soon as practicable after it is known.”

52 The effect of the above discussion is, in my opinion, that if the “reviewable decision” in the present case is only that of the Minister, then my powers are subject to the limitations imposed by reg 214D. However, if the decision of the review panel under reg 214C is also legally capable of being a “reviewable decision”, and if a review of that decision has also been sought in the present application, then I have the powers of decision available to both the Review Panel and the Minister. I would be able to give effect to my above conclusions on the extended criteria by setting aside the panel decision and substituting a decision under reg 214C(2) that the applicant should be eligible for an endorsement, and then setting aside the Minister's decision and substituting a decision pursuant to reg 214D(2) that the applicant is eligible for an endorsement. The matter would then be remitted to the Minister to implement that decision. All issues of entitlement would have been resolved finally.

53 However, the review panel decision under reg 214C can only itself be a “reviewable decision” if can itself be characterised as “the refusal to issue an endorsement” within the list of decisions in s 126(1) of the Fisheries Management Act. I do not think that this question can be avoided by characterising the panel’s decision as part of a “process as a whole resulting in the continuing refusal of the endorsement”, as did the Tribunal in Thornton’s Case (supra) at [36]. The review panel is, in fact and law, a separate entity from the Minister, and the Regulations have deliberately given separate powers of decision to the Panel and have limited the powers of the Minister by reference to the existence of decisions of the Panel . In my opinion only the Minister is given a function which can be characterised as the function of deciding to refuse “to issue an endorsement”, this being the function to “authorise by an endorsement of the licence” which is found in s 112 of the Act and which pursuant to s 113(2) is governed by regulations 191O and 214D in relation to the present endorsement.

54 I therefore consider that the review panel decision in the present case is not capable of being a “reviewable decision”, so that I am unable to be vested by s 63 of the ADT Act with the review panel’s function of decision under reg 214C. This conclusion seems to accord with the Tribunal’s reasoning in Puglisi (supra).

55 Had I reached the contrary opinion, I would have needed to consider whether the present application to the Tribunal was capable of being read as being an application for review of the decisions of both the review panel and of the Minister, or whether I should invite an application for the proceedings to be amended to encompass the review panel decision. There is much in the history of the matter recounted above which would have made attractive either of these courses.

Review of the Minister’s decision

56 As a consequence of my above understanding of the position of the Tribunal, I agree with the opinion of the Tribunal in Puglisi implicit in [10] and [24] that the limitation imposed on the Minister by reg 214D(2) must also govern the Tribunal when reviewing a decision of the Minister. The Tribunal has no power itself to substitute a determination granting an endorsement in the absence of a decision to that effect from a review panel.

57 However, this does not entail that the Tribunal cannot revisit the merits of applying the extended eligibility criteria to an applicant, and that it cannot grant a remedy if it reaches a conclusion that the applicant should be eligible under the extended eligibility criteria. Indeed, in my opinion, reg 214D indicates the contrary.

58 The effect of s 214D(1) is to oblige the Minister to consider whether he should accept and adopt the review panel’s decision on eligibility, or whether he should refer the eligibility issues back for its reconsideration. There is thus within the decision-making function of the Minister under reg 214D(1) a power to consider the appropriateness of accepting the Review Panel’s decision. This function must include a power to consider the factual and legal merits of the panel’s decision in the light of all material available to the Minister, so as to decide whether it should be adopted by him. By this reasoning, the Tribunal on review of the Minister’s decision also acquires the power to examine the merits of an applicant’s case under the extended eligibility criteria in reg 214C, and to do so on all material which may come before the Tribunal. This seems to me to be inherent in the unconfined power of the Minister to consider whether to “refer the matter back to the panel ….for further consideration”, and to make such a reference “with comments or recommendations”. On appeal from the Minister, the Tribunal has the same powers. I therefore considered that, even confined to the Minister’s powers, I had power to address the extended eligibility criteria and to reach my conclusions indicated above.

59 A special feature of this power to examine the merits of the review panel’s decision should, however, be noted. It follows from the election required between paragraphs (a) and (b) of reg 214D(1). I consider that this allows the Minister a discretion as to the extent to which he or she will receive fresh evidence and revisit eligibility issues addressed by a review panel. Since the Minister is empowered just to accept and implement the panel’s decision, there should not be a reference back to the panel without being satisfied that there is reason for doing so.

60 However, I consider that there is no implication that the reason for a reference back must be or include satisfaction as to a defect in the panel’s proceedings whether of law or fact. It is sufficient to decide that a reference back is administratively fair and appropriate (or “correct and preferable”), taking into account the particular circumstances of the case and the structure and objects of the legislative scheme.

61 Similarly, there is no requirement that the Minister must form a concluded opinion contrary to that of the panel, before deciding to refer the matter back. Indeed, in some circumstances it may be more appropriate for the Minister to decide merely that new material or further considerations should be brought to the panel’s attention. The Tribunal may reach a similar position, particularly taking into account the special expertise of a review panel. However, since the Tribunal’s procedures are likely to have included a thorough re-examination of issues of fact and law, the Tribunal may conclude that on a reference back the panel should be guided by a full discussion of the relevant issues of fact and law, and that this discussion should include the Tribunal’s own opinions on those issues.

62 In the present case I was satisfied that it was appropriate for me, on review of the Minister’s refusal to issue an endorsement, to re-visit the merits of applying reg 214C to the applicant. My reasons were twofold. First, my above examination of the proceedings and decision of the review panel left me doubtful, to say the least, that the panel had correctly instructed itself in law as to the questions which it needed to address under reg 214C(2) and that it had, in fact, addressed those questions. I have pointed above to the inadequacy in this respect of the panel’s report and of the other evidence as to its reasoning. Secondly, I considered that, taking into account the over-all circumstances of the applicant’s history as a commercial fisherman and of his application for an endorsement outlined above, it was fair to the applicant and consistent with the observance of appropriate administrative procedures to allow him to present additional and more extensive evidence than was available to the review panel. As I have explained above, that additional evidence led me to conclude that he satisfied reg 214C(2)(c)(i). I am not persuaded in the present case that the panel should not be provided with and gain assistance from my reasons for reaching this conclusion.

I have accordingly decided that the present matter, including the additional evidence and my opinions as to its effect, should be referred back to a review panel. The correct and preferable decision is to set aside the Minister’s decision and substitute the decision that the matter be referred back for further consideration taking into account my above reasons for decision.