YENNETT PTY LTD and DEPARTMENT OF FISHERIES (WA)
[2005] WASAT 31
•21 MARCH 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: FISH RESOURCE MANAGEMENT ACT 1994, s 149(1)
CITATION: YENNETT PTY LTD and DEPARTMENT OF FISHERIES (WA) [2005] WASAT 31
MEMBER: DEPUTY PRESIDENT CHANEY
HEARD: 4 MARCH 2005
DELIVERED : 21 MARCH 2005
FILE NO/S: RD 14 of 2004
BETWEEN: YENNETT PTY LTD
Applicant
AND
DEPARTMENT OF FISHERIES (WA)
Respondent
Catchwords:
Fisheries - Interim management plan - Variation of permit - Scope for variation under plan - Whether interim plan provides exhaustive criteria for variation of permit
Legislation:
Fish Resources Management Act 1994 (WA), s 54, s 60(2), s 85, s 85(2), s 142, s 142(1), s 142(1)(a), s 142(2), s 142(3), s 143(3), s 149, Part 6
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
State Administrative Tribunal Act 2004 (WA), s 167
Result:
Application to dismiss proceedings for want of power to vary dismissed. Directions for hearing on merits to be made
Category: B
Representation:
Counsel:
Applicant: Mr H Dorrington (officer of the applicant company)
Respondent: A D Kurtze
Solicitors:
Applicant: Self-represented
Respondent: A D Kurtze, Department of Fisheries
Case(s) referred to in decision(s):
Nicoletta Ciffolilli; ex parte Peter Phillip Rogers (1999) WASCA 205
Case(s) also cited:
Nil
REASONS FOR DECISION
JUDGE CHANEY: Fishing for deep sea crabs of the West Australian coast is governed by the West Coast Deep Sea Crab Fishery (Interim) Management Plan 2003 ("the interim plan") being a management plan determined by the Minister pursuant to s 54 of the Fish Resources Management Act 1994 ("the Act"). To fish for deep sea crabs within the fishery, it is necessary to hold a permit. Permits can be either Class F permits (which allow fishing all year round), or Class P permits (which allow for fishing for not more than 3 months in a calendar year). Permits must relate to one of the 5 areas into which the fishery is divided, and allow fishing only within that area. The applicant is the holder of a Class P permit in relation to Area 3. He has applied to the Executive Director of the Department of Fisheries to vary his permit from a permit applying to Area 3 to a permit applying to Area 5.
The Executive Director, through his delegate, declined to vary the permit, principally on the basis that the interim plan does not allow for such a variation. The letter declining the application also express the conclusion that the application would not be in the better interest of the fishery as:
"a.It would not be in accord with the original intent of the West Coast Deep Sea Crab Interim Management plan.
b.It would create a precedent in terms of consideration of similar applications encouraging a 'race to fish' in areas of apparent abundance, which may discourage sustainable fishing and reduce the extent of exploratory fishing activities."
Having received notice of the Executive Director's proposed decision, the applicant lodged a notice of objection pursuant to s 149 of the Act as it stood prior to its amendment by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004. By reason of s 167 of the State Administrative Tribunal Act 2004, this Tribunal is now called upon to determine that objection by way of review of the Executive Director's proposed decision.
There is a threshold question which the parties identified, namely whether the Executive Director, and thus the Tribunal standing in his shoes, has the power to grant the variation to the permit which is sought by the applicant. That question was argued as a preliminary issue, and it is that question to which these reasons relate.
Relevant provisions of the Act
Section 142 of the Act provides that:
"(1)The Executive Director may vary an authorization if —
(a)the holder of the authorization applies to the Executive Director for the variation;
(b)it is necessary to correct any error in the authorization; or
(c)it is necessary to give effect to the provisions of this Act.
(2)Subject to subsection (3), if a person applies to the Executive Director for the variation of an authorization the person is not entitled to the variation as of right.
(3)If —
(a)a management plan specifies criteria for the variation of an authorization;
(b)a person applies to the Executive Director for the variation of such an authorization; and
(c)the Executive Director is satisfied that the criteria have been satisfied,
the Executive Director is to vary the authorization."
Management plans are dealt with in Part 6 of the Act. Section 58 provides that management plans may prohibit a person from engaging in any fishing activity of a specified class in a fishery otherwise than in accordance with authorization, and by Subsection 2 relevantly provides that:
"(2)The management plan may —
(a)provide for different classes of authorizations;
(b)restrict the number of authorizations that can be granted or provide that no further authorizations can be granted;
(c)specify criteria to be satisfied before the Executive Director can grant an authorization;
(d)specify a procedure for determining which persons are to be granted authorizations if the number of eligible persons seeking an authorization exceeds the number of authorizations that can be granted;
…
(h)specify grounds on which the Executive Director may cancel, suspend or refuse to renew an authorization (in addition to those already specified in section 143(1)(a) to (g));
…
(j)specify criteria to be satisfied before the Executive Director can vary an authorization on the application of the holder of the authorization;
…"
Section 60 concerns entitlements under a management plan. Section 60 reads:
60.Management plan — entitlements
(1)Without limiting section 56(3), a management plan may provide for a scheme relating to the extent of the entitlements conferred by authorizations in respect of the fishery or any part of the fishery.
(2)The management plan may —
(a)specify the way in which entitlements are to be fixed and allocated;
(b)provide for all or any of the entitlement to be specified in an authorization;
(c)provide for entitlements to be expressed in terms of units (however described) and from time to time specify the extent of the entitlement arising from such units;
(d)suspend entitlements during a specified period;
(e)provide for entitlements to be increased or reduced;
(f)provide for the conversion of one kind of entitlement into another kind of entitlement;
(g)prohibit a person from doing any thing in excess of an entitlement;
(h)authorize the temporary transfer of entitlements (either generally or only in specified circumstances);
(i)specify —
(i)the criteria that a person must satisfy before the person can buy any forfeited entitlement under section 76(4); and
(ii)the way in which any forfeited entitlement may be sold under that section."
The relationship of the power under section 142 to vary to the provisions of a Management Plan
A different management plan was considered by the full court of the Supreme Court of Western Australia in Nicoletta Ciffolilli; ex parte Peter Phillip Rogers (1999) WASCA 205 (the "Guardon case"). In that case, Justice Parker with whom the other members of the court agreed, reviewed the provisions of sections 58 and 60 of the Act, and considered a submission by the second respondent, Guardon Pty Ltd that, not withstanding any provision in the applicable management plan for a variation of entitlements, s 142(1) provided a discretion to vary the entitlements. Justice Parker rejected a broad construction of s 142(1)(a) which would preclude a management plan from making exhaustive provision for entitlements under authorisations where the scheme of ss 59 and 60 is directed to enabling that to occur. He concluded (at [47]) that the proper interpretation of s 142(1)(a) is to see its purpose as enabling variation, where that is possible under the terms of the management plan, but not as intending to create a right to variation where the terms of a duly made management plan are exhaustive and preclude variation. Justice Parker concluded that where, as in a case before him, the management plan did exhaustively provide for entitlements, the legal force of the management plan prevents any variation to entitlements other than as expressly permitted under that management plan.
It follows that the question for determination in this case is whether, properly construed, the interim plan exhaustively deals with rights to vary entitlements. If so, then the interim plan would need to provide for the particular variation sought by the applicant in order for there to be power to grant that application. If the interim plan does not exhaustively provide for variations, then a residual discretion to vary may exist under s 142 and the merits of the application will require consideration.
The terms of the interim plan
Clause 8 of the interim plan limits the total number of Class F permits to five and Class P permits to seven. Clause 9 provides that the permit may only authorise fishing in one area of the fishery, and that not more than one Class F permit and one Class P permit, or two Class P permits, may authorise fishing in the same area of the fishery. Clause 10 provides the criteria for the grant of a permit and limits grants to a person who was the holder of a fishing boat licence with a particular indorsement and who applies for a permit before 31 March 2003. By cl 12, a permit expires at the end of the calendar year in which it is granted or renewed. Clause 14 identifies a number of items to be specified in a permit, including the area in which fishing may be undertaken under the authority of the permit.
Clause 15 deals with variation of a permit. It provides:
"15.Where the holder of a class F permit applies to vary the permit to a class P permit, the Executive Director is to so vary the permit."
Clause 19 provides that Class P permit holders must give a notice to the department of their intention to commence fishing. The notice is to contain certain information including "details of where the fishing is to be carried out". The purpose of that notice is presumably to regulate the limitation that applies to Class P permits by virtue of cl 18 which prohibits those permit holders fishing for more than three calendar months in any calendar year.
The Applicant's Contentions
The applicant seeks to vary its Class P permit so as to have it applied to a different area from that to which it presently applies. The variation which is sought would result in a position which complies with cl 8 and cl 9(2) in that the maximum number of permits for the fishery, or for any area within the fishery, would not be exceeded. Correspondence from the applicant to the Executive Director in support of the application asserts that there has not been a realistic attempt to fish in Area 5, and suggests that the objective of the interim plan of gathering as much data concerning the fishery would be promoted by the variation sought. Although that proposition was not accepted by the respondent at the hearing, the applicant's position is that the purpose and objectives of the plan would be better served by the grant of the variation.
The applicant also put some reliance on cl 19 as suggesting flexibility under the scheme as to "where the fishing is to be carried out". In my view, however, cl 19 is properly to be read as requiring an indication of where, within the area to which the permit applies, the fishing is to be carried out.
The Respondent's Contentions.
The respondent contends that the interim plan implicitly covers the field in relation to permissible variations, and it is not open to the Executive Director to grant any variations not specifically provided for under the plan. The respondent accepts that there is no express provision stipulating that no variation other than a variation prescribed in cl 15 is permitted, but suggests that the interim plan is of the same effect as that considered in the Guardon case, and that no express provision is thus required.
The respondent submits that that conclusion can be drawn from the propositions that cl 9, cl 15 and cl 17 provide a scheme of management of the fishery which "covers the field" in relation of how an authorisation may be varied. It is submitted that the exhaustive provisions of the interim plan do not permit the possibility of the variation sought, and reliance is placed upon the Guardon case at paragraph [35]. Furthermore, the respondent submits that "The interim plan was implemented to limit fishing pressure and to distribute effort as widely as possible while information on the biology, spatial extent of the fish stock and robustness to fishing activity was collected and analysed. The Interim Plan could not have intended that area variations would be permitted at the discretion of the Executive Director since such variation would undermine the 'control' function of the Interim Plan, which is plainly evident from content of the Interim Plan."
Is the Interim Plan exhaustive as to variations
As was observed by Justice Parker in the Guardon case, management plans for different fisheries may very considerably as to their content. A management plan may make only limited and general provision or may extend to very detailed, extensive and even highly restrictive provisions. In this case, cl 15 effectively confers an entitlement to variations as of right where the holder of a Class F permit seeks to vary that to a Class P permit. It is thus the type of provision contemplated by s 143(3). Its purpose can be readily appreciated. Variation from a Class F to a Class P permit has the overall effect of reducing the amount of fishing within a particular area from the maximum that might be achievable under the operation of the interim plan. By cl 9(2) a particular area may be the subject of a Class F permit, which in effect permits fishing 12 months of the year, and a Class P permit would permits fishing for 3 months of the year. If there are two Class P permits in an area then the maximum fishing in that area would be 3 months by each of the holders of those permits. If a Class F permit holder varies his permit to a Class P permit holder, the effect would be that there is then no Class F permit holder for that area and the maximum fishing that could be done within the area would be that possible under two Class P permits. Thus the interim plan provides for that variation as of right.
Section 142(2) contemplates that there may be applications for variations considered by the Executive Director which are not the subject of specified criteria under a management plan. In those cases no entitlement to variation exists as of right, but by necessary implication some discretion to vary, based on the merits of the application, must reside with the Executive Director. Thus there may be management plans which provide some criteria for variation, but do not exhaustively deal with potential variations. That conclusion is consistent with the observations of Parker J to the effect that management plans may vary considerably as to their content.
The applicant's contention is that a variation which simply moves one Class P permit from one area to another, without resulting in an excess of permits in the latter area, and does not result in any new or additional permits within the total fishery, is permissible under the interim plan.
It is necessary to consider the respondent's contention that cl 9, cl 14, cl 15 and cl 17 provide a scheme of management which covers the field as to variations. Clause 9 simply imposes a stipulation as to the number and type of permits that may operate within one area. Clearly a variation of a permit which would result in the number or type of permits within a particular area stipulated by cl 9 being exceeded would be contrary to the interim plan and not permissible. It does not follow that a variation which did not result in non‑compliance with cl 9 could not be permissible.
Clause 14 stipulates that the permit must specify, inter alia, the area in which fishing may be undertaken under the authority of the permit. There is nothing in that provision which suggests that the permit could not be varied to designate a different area. The requirements of cl 14 would still be met once the permit was varied.
Clause 15 identifies a circumstance in which the Executive Director is obliged to permit a variation, but does not expressly provide that no other variation is permissible under the plan. As observed above, it creates a right to variation in certain circumstances. It does not follow that there can be no residual discretion to vary in other circumstances as contemplated by s 142(2).
Clause 17 provides for a prohibition on fishing in the fishery other than in accordance with the plan and under the authority of a permit. That is obviously an essential provision to make the management plan effective, but it does not follow that the authority under a permit may not be varied. Clause 17 would continue to apply to the permit as varied and its force as a management tool is not affected.
The other general proposition advanced by the respondent is that a variation would undermine the control function of the interim plan. The essential control which the plan provides is that it limits the maximum number of persons who can fish for deep sea crabs in the fishery generally, and within each area within the fishery. I am unable to see how that control mechanism is undermined by a variation of a licence from one area to another, if the maximum number of licences for any particular area is not thereby exceeded. There may be particular reasons why, as a matter of discretion a variation should not be permitted, but that question involves a consideration of the merits of a particular application, rather than suggesting that the power to vary does not exist under the terms of the interim plan.
In my view, the interim plan is not an exhaustive statement of all circumstances in which a variation to a permit may be granted, and if a variation sought does not result in non‑compliance with the express terms of the interim plan, a discretion to grant a variation pursuant to s 142 of the Act does exist.
The "Race to Fish" argument
In his letter to the applicant refusing the variation, the Executive Director gave as one of his reasons that the variation "would create a precedent in terms of consideration of similar applications, encouraging 'a race to fish' in areas of apparent abundance, which may discourage sustainable fishing and reduce the extent of exploratory fishing activities." That is a reason which goes to the merits of any particular application. It can be noted that there is limited scope for variations in the area applicable to any particular licence because of the limits imposed by cl 9. If an area of abundance already had two permits attached to it, then obviously no other permits could be varied to apply to that area. Limitations of that nature tend to suggest that the "race to fish" concern is reduced, but it may be that an examination of the merits of a particular application gives substance to that concern. Because any particular application needs to be considered on its merits, and because of the limited flexibility which exists by reason on cl 9, a concern about the creation of a precedent has little force.
Conclusion
For the foregoing reasons, I am of the view that the West Cost Deep Sea Crab Fishery (Interim) Management Plan 2003 does not cover the field in relation to variations of permits. For that reason the preliminary issue should be decided against the respondent. The present application should be determined on its merits. It will be necessary for further directions to be obtained as to the future conduct of the review.
I certify that this and the preceding 11 pages comprise the reasons for decision of the State Administrative Tribunal.
_________________________
Deputy President J Chaney
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