CITATION: Slockee & Anor -v- Minister for Fisheries [2002] NSWADT 116 DIVISION: General Division APPLICANTS Robert John Slockee PARTIES: Janette Pamela Slockee RESPONDENT Minister for Fisheries FILE NUMBER: 003280 HEARING DATES: 01/02/2001 SUBMISSIONS CLOSED: 05/23/2001 DATE OF DECISION: 07/05/2002 BEFORE: Goode P - Judicial Member APPLICATION: Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994 Fisheries and Oyster Farms (General) Regulation 1989 Minister for Fisheries v Puglisi & Ors [2001] NSWADTAP 2 Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298 CASES CITED: Woodward v Minister for Fisheries [2000] NSWADT 143 Greenaway v Director, Department of Fisheries [2000] NSWADT 173 Minister for Fisheries v Woodward [2001] NSWADTAP 3 Leeder v The Mayor, Etc, of the Town of Ballarat East [1908] VLR 214 APPLICANTS REPRESENTATION: M Begg, solicitor RESPONDENT C Cory, solicitor ORDERS: 1. The decision under review is affirmed; 2. No award as to costs. Background 1 The Applicants, Robert and Janette Slockee, are partners in a business carrying on fishing activities. They live in Chinderah in the Tweed Heads area on the Far North Coast of New South Wales. They have two sons who are also commercial fishers. According to Mr Slockee, he and his two sons are the last licensed multi-purpose Aboriginal fishermen left on the north coast of New South Wales. 2 The fishing business operated by Robert and Janette Slockee is known as FB 902. Robert Slockee is the person most actively engaged in the fishing activities of FB 902. 3 The following matters are not in dispute: · Robert Slockee has held commercial fishing licence 830247 since 1983. · Janette Slockee has held commercial fishing licence 890202 since 1989. · Neither of the Applicants holds a commercial fishing licence that is subject to a condition known as a "beach worm only" condition for the purposes of clause 191N(8)(a) of the Fisheries Management (General) Regulation 1995 ("the Regulation"). · FB 902 owns and operates five licensed fishing boats. · The catch history for FB 902 consists of the personal history of Robert Slockee and the inherited catch history of George Tully (FL 790381) and Bernard Carter (FL 781032). 4 In late 1996, the Applicants applied to the Minister for Fisheries ("the Minister") for Prawning and Hand Gathering endorsements to their commercial fishing licences in the Estuary General Restricted Fishery. Robert Slockee's application was dated 28 October 1996 and Janette Slockee's application for the same endorsements was dated 17 December 1996. 5 By letter dated 21 February 1997, the Applicants were advised that both the Prawning endorsement and the Hand Gathering endorsement had been refused. 6 On 14 March 1997, the Applicants requested a review of the determination made by the Minister in relation to the endorsements. The Applicants were entitled to do this under clause 214A of the Regulation. Clause 214B of the Regulation obliges the Minister to establish a panel to conduct a review. The grounds for review are set out in clause 214C of the Regulation. 7 The Review Panel carried out a review of the Minister's determination relating to the Applicant's eligibility. This review included the conducting of a hearing of the matter on 14 December 1999 at Murwillumbah Court House, at which Mr Slockee represented himself. 8 The Review Panel provided the Minister with a written report, dated 15 February 2000, recommending that the Applicants be refused the Hand Gathering endorsement but granted the Prawning endorsement. In relation to the Hand Gathering endorsement, the Review Panel stated that it was not satisfied that the Applicants met the eligibility criteria. 9 In accordance with the recommendation of the Review Panel, the Minister confirmed his original decision and determined that the Applicants should not be granted a Hand Gathering endorsement (clause 214D of the Regulation). The Applicants were notified accordingly by letter dated 24 July 2000. 10 By application dated 17 August 2000, the Applicants applied to this Tribunal for a review of the Minister's decision. The Tribunal's review jurisdiction is conferred by s 38(1) of the Administrative Decisions Tribunal Act 1997 ("the Tribunal Act"). The Tribunal's powers of review are set out in ss 63 – 66 of the Tribunal Act. 11 Unfortunately, the hearing before the Tribunal at Lismore Courthouse on 1 February 2001 was cut short due to the pressing need to evacuate Lismore on that day as a result of rising floodwaters. Before adjourning the matter, by agreement between the parties, I gave directions for the filing of further affidavit evidence so as to ensure that neither party was prejudiced by the lack of opportunity to give oral evidence. I also gave directions that written submissions be filed following the handing down of the decision of the Appeal Panel in Minister for Fisheries v Puglisi & Ors [2001] NSWADTAP 2. 12 After the Appeal Panel's decision was handed down on 26 February 2001, the Puglisi family appealed to the New South Wales Court of Appeal. Their appeal was dismissed on 12 September 2001 : see Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298. The Court of Appeal's decision is critical to the outcome of the present case. It is discussed in detail later in this decision. Regulation of Commercial Fishing 13 The regulation of commercial fishing licences and commercial fishing boat licences in New South Wales is governed by the Fisheries Management Act 1994 ("the Act") and the Regulation. On 28 February 1997, Division 2C was inserted into the Regulation and had the effect of making the Estuary General Fishery a restricted fishery so that the Applicants' commercial fishing licences no longer authorised them to take fish in that fishery unless they were authorised by the Minister to do so, by an endorsement on their licences (s 112 of the Act). Pursuant to s 113(2) of the Act, eligibility for endorsement of commercial fishing licences is to be determined in accordance with the regulations. An endorsement is not transferable unless authorised by the regulations (s 114). 14 Clause 191L of the Regulation provides: "The estuary general fishery consists of: (a) the taking of fish from estuarine waters by any lawful method other than prawn trawling, and (b) the taking of fish from ocean beaches by the method of hand picking." 15 Clause 191J of the Regulation defines "hand picking" (of fish) as meaning any method of taking fish by hand (whether or not while wearing a glove) including taking fish by hand while diving or while using an instrument (specified in clause 73 of the Regulation). 16 Clause 191M of the Regulation provides for nine different classes of endorsement in the Estuary General Restricted Fishery. Each class has its own eligibility requirements. Broadly, they each require proof that an applicant for endorsement has a history of that particular activity. As was noted by Robert Slockee and other witnesses in their affidavit evidence, the Hand Gathering endorsement appears to be an anomaly amongst the eight other classes of endorsement specified in clause 191M, in that it is the only endorsement which relates to fishing activities both in estuarine waters and from ocean beaches. The other eight classes all relate to fishing activities in estuarine waters only. 17 The prescribed eligibility requirements for a Hand Gathering endorsement are found in clause 191N of the Regulation. Clause 191N(1) sets out the general requirements applicable to each of the nine classes of endorsement in the Estuary General Fishery: "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." 18 It is not in dispute that the Applicants satisfy the general requirements set out in clause 191N(1) above. 19 Subclauses (2) through to (9) of clause 191N set out the eligibility criteria specific to each class of endorsement in the Estuary General Fishery. In respect of a Hand Gathering endorsement, subclause (8) relevantly provides: "(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. . . . " 20 As stated in para 3 above, it is conceded that neither of the Applicants holds a commercial fishing licence that is subject to a condition known as a "beach worm only" condition. The Applicants also concede that they fail to satisfy subparagraph (b) of clause 191N(8) because only one catch return showing a catch of the requisite shellfish has been submitted by them for the relevant period between 1986 and 1993. 21 Clause 191N(12) of the Regulation provides: "(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)." 22 Clause 191N(13) of the Regulation provides: "(13) The catch history associated with a fishing business is to be determined in accordance with clause 135(3)." 23 Clause 135(3) of the Regulation provides: "(3) The catch history associated with a fishing business is the historical takings of fish for sale by or in connection with a fishing business. The catch history is to be determined by the Director in such manner as the Director considers appropriate, having regard to the records, kept by the Director, of fish taken for sale by any person involved in the business, or of fish taken for sale by use of a licensed fishing boat operated by the business, or to a combination of both. If a fishing business is sold by a person, the catch history associated with that business is transferable only in accordance with guidelines issued by the Director from time to time." 24 Clause 191N(14) of the Regulation provides: "(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." 25 The reference to the 1935 Act in clause 191N(14) is to the predecessor to the present Act, the Fisheries and Oyster Farms Act 1935 (NSW) ("the F & O Act"). 26 Clause 191O(3) of the Regulation empowers the Minister to endorse the commercial fishing licence of a person who satisfies the eligibility requirements for an endorsement. 27 Section 121 of the Act provides: "121 Commercial Fishers to keep records of catch (1) A commercial fisher must make a record of all fish taken by the commercial fisher. (2) If the commercial fisher is the master of a boat used to take fish, a record of all fish taken by the use of the boat must be made. In that case, any other commercial fisher who assisted in the taking of those fish is not required to keep a record of those fish. (3) The record must be made in such form and manner as are prescribed by the regulations or (subject to the regulations) as are approved by the Minister. (4) A commercial fisher who contravenes this section is guilty of an offence. Maximum penalty : 200 penalty units." 28 Relevantly, cl 222 of the Regulation provides: "222 Form of record to be kept by commercial fisher – transitional For the purposes of section 121(3) of the Act, if the Minister has not approved a form of record to be kept by a commercial fisher under section 121 of the Act (being the record of fish taken by a commercial fisher), the prescribed record for the fisher is: (a) in the case of a commercial fisher taking fish for sale from any waters (other than inland waters) and landing the fish in New South Wales – Form 19 of Schedule 1 to the Fisheries and Oyster Farms (General) Regulation 1989 (as in force immediately before the commencement of this Regulation), or (b) ….." 29 Section 121(3) of the Act, together with clauses 222 and 223 of the Regulation and para 6.1 of the NSW Fisheries Licensing Policy, November 1996 (the "Licensing Policy"), clarify the records required to be kept by a commercial fisher. The Licensing Policy is the updated version of the original Licensing Policy introduced on 9 June 1994. The Licensing Policy includes provisions for assessing catch history. 30 The definition section of the Licensing Policy defines catch history as: "The catch records allocated to a fishing business after a catch history assessment. The records are based upon monthly catch returns submitted to NSW Fisheries by licensed fishers, between 1986 and 1993." 31 Paragraph 6.1 of the Licensing Policy states that the catch history attributable to any one fishing business arises from the monthly catch records submitted by each licensed fisher. Licensed fishing boats are classified as either boat history vessels or general purpose vessels. In turn, catch history is categorised as either "personal catch history" or "boat history". 32 The Licensing Policy (para 6.1) provides: "(a) Personal catch history – Generally, personal catch history applies in fishing businesses where the fisher is the primary unit of effort. This includes estuary and beach fishing, and boats involved in mixed estuary / ocean businesses. A fisher's personal history comprises all of his / her catches taken from general purpose vessels between 1986 and 1993 (see below). (b) Boat history – Boat history generally applies where the boat is the primary unit of effort. These include all endorsed vessels (ie. offshore prawn trawl, estuary prawn trawl, Commonwealth tuna longline and South East Trawl endorsed boats) and some unendorsed ocean vessels such as finfish trawlers and large offshore line and trap boats. These vessels are referred to as boat history vessels." 33 Paragraph 6.3 of the Licensing Policy provides: "6.3 Did I receive catch history when I purchased my boat before 9 June 1994? Fishers who purchased a boat or boats which were involved in a personal history business (under this policy) normally receive that entire personal catch history of the seller if the transfer resulted in the seller leaving the industry at that time. If the seller continued to hold other boat licences or retained their fishing licence to work on other boats, the catch history is normally considered to have remained with the seller. Fishers who purchased a boat or boats in a boat history business receive the catch history which is attributable to that boat." 34 The catch returns referred to in clause 191N of the Regulation provide the starting point for determining a fisherman's eligibility for a particular endorsement. The nature and relevance of these returns is discussed in Woodward v Minister for Fisheries [2000] NSWADT 143 and Greenaway v Director, Department of Fisheries [2000] NSWADT 173. 35 In Woodward, Judicial Member Smith observed at paras 6 – 8: "6 . . . Section 42 [of the F & O Act] 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, ie 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. 36 The "extended eligibility criteria" (as termed by Judicial Member Smith in para 8 of Woodward ) are found in clause 214C of the Regulation: "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)." 37 Clause 128 of the Regulation provides: "128 Determination of catch history (1) For the purposes of section 51(4) of the Act, the following documents are prescribed: (a) a verified record of a commercial fishers' co-operative, (b) a verified record relating to the income tax liability of a commercial fisher, (c) a verified record of any fish processing company (whether a wholesaler or retailer). (2) In this clause, a reference to a verified record is a reference to an original record, or a copy of a record, audited by a registered company auditor (within the meaning of the Corporations Law ) or that forms part of a record audited by a registered company auditor." The Review Panel's Consideration of the Applicants' Eligibility 38 The Review Panel considered that as Mr Slockee only used "general purpose vessels" and the catch history he inherited from Messrs Tully and Carter solely related to their use of "general purpose vessels", the Applicants' catch history should be determined as "personal history". 39 The Review Panel determined that the validated catch history of FB 902 included only one catch return (8902) listing a quantity of hand gathered species (pipis) submitted by George Tully. The Panel noted that Mr Slockee did not lodge any catch returns listing any of the hand gathered species prescribed by the Regulation during the years 1986 to 1993 inclusive (p 8 of the Statement of Reasons dated 28 September 2000). 40 The Panel stated that it did not have corroborative evidence of Mr Slockee's own hand gathering activities or further months of hand gathering by Mr Tully. It acknowledged that neither Mr Slockee nor Mr Tully had access to any verified records of sales of hand gathered species. The Panel was not satisfied on the evidence that Mr Slockee, Mr Tully or Mr Carter hand gathered beach worms, pipis, cockles, yabbies or mussels on seven other occasions (besides February 1989) during the criteria years (p 8 of the Statement of Reasons dated 27 September 2000). Monthly Catch Returns 41 Section 42 of the F & O Act provides: "Returns 42 (1) The Minister may, from time to time, by notice published in the Gazette, require persons engaged in the operations referred to in subsection (2), to keep records as prescribed and to furnish returns in or to the effect of the prescribed form as to the catch, sales, output, gear used in connection with the operations, or business of such persons. (1A) The notice may require that a return is to be furnished even if the operations in respect of which the return is required indicate a nil return. (2) The operations in respect of which a return may be required under this section shall be – (a) the cultivation of oysters; (b) the taking of fish for sale; (c) the sale of fish at any market or at any establishment at which fish is sold which has not passed through a market; (d) the preserving, curing, smoking, drying, or salting of fish; (e) the canning or bottling of fish or of any fish product intended for human consumption; (f) the preparation of fertilisers from fish or of any fish product or by-product not intended for human consumption; (g) the carriage of fish or oysters by sea, land or air; (h) any other operations relating to the fishing and oyster farming industries as may be prescribed. (3) A notice under this section may require that a return shall be furnished by all persons engaged in the operations referred to in subsection (2), or in such of those operations as are specified in the notice, or by any specified class of such persons, or by all such persons other than persons of a specified class. (4) The notice may require returns to be furnished at such periods as may be specified therein, and may require that separate particulars shall be furnished as to the weight, quantity, value, or price of any one or more varieties or species of fish specified in the notice or as to the locality in which any fish or any one or more varieties or species of fish specified in the notice were taken. (4A) A person who, under subsection (1), is required to furnish a return shall keep a copy of the return for a period of one year after it has been furnished and shall make the copy available for inspection by an inspector on demand. (4B) A person authorised in writing by the Director-General may, or an inspector may, for the purpose of checking the information in a return under this section, at all times enter a market, shop, place of business, cool store, smokehouse, cannery or factory, or any other place, where any operation referred to in subsection (2) is carried on by the person who furnished the return and inspect any books of account, records or other documents relating to that operation. (4C) A person who carries on any operation referred to in subsection (2) shall, where the Director-General gives him notice in writing so to do, produce for inspection by a person specified in the notice all books of account, records and other documents which are in the possession or under the control of the person who carries on that operation and which relate to that operation. (5) Any person who neglects or fails to furnish a return in accordance with this section, or who furnishes any false information in any such return, or otherwise fails to comply with any provision of this section, is guilty of an offence. Maximum penalty: 25 penalty units in the case of a corporation or 10 penalty units in any other case." 42 Clause 123 of the Fisheries and Oyster Farms (General) Regulations ("the F & O Regulations") relevantly provides: "123 For the purposes of section 42 of the Act, the form prescribed in relation to a return to be furnished by a person engaged in – (a) the taking of fish (other than abalone, sea urchin or turban shell) for sale, from any waters other than inland waters and landing the fish in New South Wales, is Form 49." 43 Section 4 of the F & O Act defines "take" as follows: "'Take' , in relation to fish, includes catch, capture, kill and enclose the fish and, in relation to fish attached to any rocks or any material or structure, includes remove, extract and separate the fish or part of the fish from those rocks or that material or structure." Evidence Relating to Monthly Catch Returns: Forms 49 and 19 44 Form 49 was the prescribed form until some date in 1990. A copy of the form is attached to Mr Slockee's affidavit of 29 January 2001 as Annexure "B". The form spans three pages and is entitled: "Monthly return in respect of fish and shellfish taken from ocean and estuarine waters and landed for sale in New South Wales during the month of …….. 19 …." 45 The title of the form appears to be a shortened version of para (a) of s 123 of the F & O Regulations (set out above in para 42). Unfortunately, the title is somewhat misleading in that it does not specifically state that the return is to be furnished by a person engaged in the taking of fish for sale (my emphasis). I interpret the words emphasised as meaning "furnished by a commercial fisher". 46 Under the section on page 1 of the form entitled "Disposal of Catch", there are five categories which refer to sales and a sixth category which simply states "Other". The Respondent submits that under the category "Other" fishers were required to record whether the catch had been taken for bait or their own home consumption or use. Regrettably, the form does not state this and gives no instruction as to the meaning of the category "Other". The Respondent further submits that the instructions on the second page of the form (which lists the various types of fish and shellfish caught) make it clear that the section must be completed when fish or shellfish have been taken from sea beaches and ocean waters (my emphasis). Unfortunately, when read with the title on page 1 of the form, it is unclear that this section had to be completed by all fishers regardless of whether there were any sales made (my emphasis). Although the form specifies 11 different shellfish, pipis are not expressly included. Presumably, it was intended that they be nominated in the category "Other Shellfish". 47 Mr Slockee's understanding of Form 49 is contained in para 18 of Exhibit A: "As far as I was concerned, the catch return forms only ever asked for information on the amounts of fish that were sold, not catch used for bait or personal use. I read the forms this way because on the first page of the Form 49, the heading at the top referred to "fish landed for sale" and further down the front page of the form asks for the information on "Disposal of the fish" which listed the various ways in which the fish were "Sold". Because of this I never recorded on the returns the fish and shellfish that I used for bait or ate myself or gave away. . . . [I] made sure that I only recorded the fish I sold on those returns. I recall actually asking a Fisheries Officer about this once early on in around 1989 at the Tweed Heads Office and I remember that he looked at the Form 49 and said to me words to the effect of: 'We are only interested in what was sold'." 48 Form 19 which was introduced in 1990 requires separate forms to be filled in for Ocean and Estuary catches. Form 19 – Ocean is entitled: "Monthly declaration of fish taken by a fisherman from OCEAN WATERS and BEACHES and landed for sale in New South Wales". In this respect, it follows the title of Form 49. However, directly below the title are the words "PLEASE READ INSTRUCTIONS BEFORE COMPLETING". Section C, Part 12 of the form entitled "Disposal of Catch" is very similar to (although not identical to) the original Form 49. However, unlike Form 49, there is a detailed list of instructions set out on page 3 of the form. 49 Relevantly, instructions 12 and 13 of Section C read: "12 DISPOSAL OF CATCH – Show where you sold or otherwise disposed of your catch (including bait and own consumption) . . . 13 SPECIES – Enter the landed weight to the nearest kilogram of each species you caught this month. If a species you caught is not listed, show the landed weight and name at an appropriate place marked "specify". NOTE - . . . Record all catch taken for sale, bait, own (home consumption). Bait should be listed by species or as mixed fish and included in total catch, even if you used it to catch other fish. We need to record all catches, even if not sold. Show the total weight of fish and shellfish in the spaces provided." 50 The instructions on page 3 of the form also note: "Your return is treated as strictly confidential. The information is used in management and research of our Fisheries. It is important to complete each return accurately. . . . While the Fisheries and Oyster Farms Act provides penalties for failing to properly submit catch returns, it is in your interest to comply to improve the management of your Fisheries. If you have any problems completing this return consult your local Inspector of Fisheries." 51 Mr Slockee's understanding of Form 19 is found in para 19 of Exhibit A: "I remember that in around 1990 Form 49 was replaced by a new catch return known as "Form 19" which introduced separate forms for Ocean and Beach fishing and Estuary fishing . . . I remember thinking at the time that the new Form 19 had the same heading 'fish landed for sale in New South Wales' and had the same table to record the disposal of fish 'Sold' as the old Form 49. I continued not recording the catch used as bait on this form like I did with Form 49." 52 In relation to both Forms 49 and 19, Mr Slockee said: "I know from speaking to other commercial fishermen over the years that we all thought that these catch returns were used by NSW Fisheries for scientific purposes only. I remember being told by Fisheries Officers that's what they were meant for at the time. I didn't know what that meant really." Mr Slockee's evidence on this point was corroborated by that given by two other commercial fishers, George Tully and Donald Mossley. 53 Mr Slockee also said that he thought that the category "Other" listed under the "Disposal" section of both Forms 49 and 19 was intended to provide a place for fishers to record other outlets of sale apart from those specifically nominated on the forms. He further said that he honestly believed that commercial fishermen did not have to record pipis and beach worms on the catch returns if the catch was not sold. Mr Slockee's evidence on this point was corroborated by that given by Donald Mossley and Brett Tully, George Tully's nephew. They both said that during the criteria years they were of the belief that they were not required to record catch used as bait on their monthly catch returns. Mr Mossley said that many other fishermen he knew only recorded fish sold on their returns and left off any fish used as bait. Brett Tully said that to the best of his recollection, all the other commercial fishermen he knew didn't record bait on their catch returns. 54 In support of his belief that commercial fishermen were only required to record pipis and beach worms on their catch returns if the catch was sold, Mr Slockee said that there was no specific space provided for pipis and beach worms on the forms during the criteria years. His evidence on this point is correct in relation to Form 49. However, Form 19 – Ocean (attached to Exhibit A) has specific spaces for pipis and worms. Form 19 – Estuary (also attached to Exhibit A) has a specific space for worms but not pipis. Forms 49, 19 – Ocean and 19 – Estuary all have a space alongside the category "Other Shellfish". 55 The evidence given in the Applicants' case was not challenged or rebutted by the Respondent. However, the Respondent submits that Mr Slockee's understanding of the forms is misguided and that, properly read, the forms plainly state that all catch (even if not sold) needed to be recorded. 56 Based on the overall evidence, I find that during the criteria years there was a genuine belief commonly held by commercial fishers, including Mr Slockee, that the monthly catch returns lodged with New South Wales Fisheries only required that fish taken for sale be recorded, and that the catch returns were used by New South Wales Fisheries for scientific and research purposes only. 57 I further find that as a result of this belief, it was common practice for commercial fishers, including Mr Slockee, not to record on the catch returns fish taken and used as bait or for some other personal use. 58 I also find that in relation to Form 49, Mr Slockee's belief (outlined in paras 47, 52-54) was genuinely and reasonably held. My reasons follow: · The form is described as "Monthly return in respect of fish and shellfish . . . landed for sale in New South Wales . . . " (my emphasis). · There is nothing in the body of the form which clearly explains that catch not taken for sale must be recorded (notwithstanding the reference on page 2 to fish and shellfish taken from ocean waters and sea beaches). · The category "Other" listed under "Disposal of Catch" is ambiguous. No instruction is given as to what should be included. · Mr Slockee had been told in about 1989 by a Fisheries' Officer in Tweed Heads who was looking at the Form 49, that the Department was only interested in what was sold. · There is nothing on the form to indicate that the information is treated as strictly confidential. (Mr Slockee genuinely believed that the returns could be utilised by the Australian Tax Office in the event of a tax audit and that a record of non-income producing catch on the returns could be misconstrued by the Tax Office.) 59 I find that in relation to Form 19 – Ocean , Mr Slockee's belief (outlined in paras 51-54), whilst genuine, was not reasonably held. My reasons follow: · While the form is unclear in that it is described as "Monthly declaration of fish . . . landed for sale in New South Wales", the instructions make it abundantly clear that catch taken for bait (even if not sold) or personal consumption must be recorded. · The category "Other" listed under "Disposal of Catch" is clearly explained in Section C, point 12, on the instructions page of the form. · Mr Slockee did not give any evidence to suggest that he had sought clarification from New South Wales Fisheries in relation to the form. · The instructions specifically state that the F & O Act provides penalties for failing to properly submit catch returns. · The instructions also state that the information is treated as strictly confidential and that it is used in both management and research of New South Wales Fisheries. Other Evidence before the Tribunal 60 The affidavit presented in the Applicants' case was far more extensive and better corroborated than that which was presented by the Applicants to the Review Panel. The evidence was not challenged by the Respondent. 61 I have already made a number of findings in relation to Forms 49 and 19. Set out below in paras 65-75 are my additional findings based on the overall evidence. 62 Mr Slockee is of Aboriginal descent. He was born and grew up in the Tweed Heads area of northern New South Wales. He has made a livelihood as a commercial fisher since 1983. For about a decade he was licensed to fish, and regularly did fish, up and down the New South Wales coast as well as into Queensland seawaters. Recent zoning restrictions on licensing have constrained him to fishing in the Tweed Heads area south to the township of Evans Head and surrounding ocean waters only. 63 Until the introduction of the Restricted Fisheries regime, Mr Slockee was able to engage in "multi-purpose" fishing activities on the one licence. He regularly engaged in meshing, bait hauling, ocean trap and line fishing, beach hauling, prawn hauling, spanner crabbing and the gathering of beach worms and pipis. 64 Mr Slockee regularly fished with other commercial fishermen, most often George Tully. He later bought out Mr Tully's fishing business in 1991. Mr Tully's fishing business was limited to estuary fishing only as he was not equipped to do ocean fishing. They fished together in estuarine waters and engaged in beach hauling together. 65 Prior to 1998, Mr Slockee engaged in fishing, using beach worms and pipis collected from ocean beaches to predominantly provide bait for his fishing activities and to occasionally supplement his income. Due to the low prices being obtained for pipis on the seafood market at that time, Mr Slockee found it more commercially viable to use the pipis as bait in his ocean fish traps. 66 Subject to seasonal conditions, it was the regular practice during those years for Mr Slockee and his fishing companions to search up and down the north coast for schools of fish for hauling. In the event that the fish were not "running", they would dig for pipis and beach worms while on the beach. Mr Slockee's evidence in this regard was corroborated by the evidence of Messrs George and Brett Tully. 67 Being restricted to estuary fishing, George Tully was more dependent than Mr Slockee upon the income obtained from selling pipis and beach worms to bait shops to supplement the income from his other fishing activities. He regularly engaged in digging and selling of pipis and beach worms for this purpose from the early 1980s to 1993. Mr Tully's evidence in this regard was corroborated by the evidence of Mr Slockee and his sister, Ms Joan Couch, Brett Tully and Mr Peter Johnson. (In 1985 and 1986, Mr Johnson operated a business which bought fresh bait from commercial fishermen.) 68 When Mr Slockee and George Tully dug pipis together (or on other occasions when engaging in other fishing activities together), some of the pipis would be sold by George who would later give Mr Slockee a share of the proceeds. As it was George who was selling the pipis (or other fish as the case may be), there was an arrangement in place between them that Mr Tully would record the catch on his catch returns. Accordingly, Mr Slockee assumed that any pipis sold by George in these circumstances would be recorded on George's catch returns. 69 Being a commercial fisher of Aboriginal descent and living as an integral part of the Aboriginal community of Fingal Peninsula and the Tweed Heads area, Mr Slockee was under certain cultural obligations regarding the ongoing provision of seafood to that community. Any pipis which were not used for bait were given to his extended family and other members of the Aboriginal community to eat, particularly the elder members who were unable to dig for pipis themselves. Mr Slockee's evidence in this regard was corroborated by the evidence of Ms Couch, and supported by the expert evidence of Mr Adam Faulkner, a research officer at Southern Cross University responsible for conducting a research project into Aboriginal fisheries in New South Wales. 70 Pipis and beach worms are of particular cultural and economic importance (both traditionally and in more recent times) to the coastal Aboriginal communities of New South Wales. Mr Slockee's evidence in this regard was corroborated by Mr Faulkner and the draft New South Wales Fisheries Policy Paper attached to the affidavit of Ms Jolanda Nayutah, an officer employed by the New South Wales Aboriginal Land Council. 71 During the criteria years, as a result of Mr Slockee's cultural obligations (unique to him amongst other non-Aboriginal commercial fishers), he regularly gave away large quantities of fish, including pipis, for consumption by his own community and other Aboriginal communities. 72 In 1993, after the end of the criteria period, Mr Slockee began to sell pipis in addition to continuing to use them for bait in ocean traps and giving them away. 73 Mr George Tully, being restricted to estuary fishing, was more dependent than Mr Slockee upon the income derived from selling pipis and beach worms to bait shops to supplement the income from his other fishing activities, despite the low market price for pipis. During the criteria years he regularly sold pipis and pilchards together to bait shops at around 40 c to 50 c a kilo. His evidence in this regard was corroborated by a letter from the Director of Tweed Bait and the evidence of Brett Tully and Peter Johnson. 74 When filling out his monthly returns, in all likelihood, as a routine practice George Tully did not separately record pipis alongside "Other Shellfish" but grouped them together with pilchards which was a specified category. 75 During the criteria years, both Mr Slockee and George Tully (through whom the Applicants are claiming additional catch history) actively and regularly participated in the restricted fishery for which the Applicants seek a Hand Gathering endorsement. Clause 214C(2) of the Regulation 76 The Applicants submit that the question for determination is whether the extended eligibility criteria provided for in clause 214C(2) of the Regulation (and in particular clause 214C(2)(c)(iii)) apply notwithstanding their failure to meet the criteria for eligibility set out in clause 191N (8) of the Regulation. 77 Specifically in relation to clause 214C(2)(c)(iii), the Applicants submit that it is open to the Tribunal to find that the industry practice in relation to the catch returns and the cultural factors under which the Applicants were operating during the criteria period were "significant reasons" for their inability to satisfy the strict eligibility criteria. It is further submitted that standing in the shoes of the Minister, I should remit the matter to the Review Panel for reconsideration together with a recommendation that the Panel take into account the relevant industry practice and cultural factors as "significant reasons" for the purposes of the Regulation. 78 The Respondent submits that the reasons relied upon by the Applicants are not "significant reasons" within the meaning of clause 214C(2)(c)(iii). It is further submitted that the Applicants cannot rely on clause 214C(2)(c)(iii) because the completion of Mr Slockee's catch returns, the non-recording of pipis as bait for tax audit reasons and the decision to give catch to the Aboriginal community were conscious decisions on Mr Slockee's part, within his control, and therefore "attributable to his fault". 79 It is clear from the Minister's Statement of Reasons dated 27 September 2000 that the Review Panel did not undertake an analysis of the application of the extended eligibility criteria to the Applicants' circumstances. The Review Panel's report to the Minister dated 28 February 2000 (Exhibit 1) is equally silent on the issue. 80 The Minister's decision is reviewable by the Tribunal (s 126 of the Act). The Review Panel's recommendation has not been declared to be reviewable : see Minister for Fisheries v Woodward [2001] NSWADTAP 3, para 14. Accordingly, it is not the Panel's recommendation that is the issue before me but whether the precondition to the exercise of the discretion conferred by clause 214C is met in the first instance. The Tribunal's power to remit the matter to the Review Panel is found in clause 214D(1)(b) of the Regulation. 81 The Applicants submit that there are four clear conditions which must be satisfied under clause 214C(2)(c)(iii): (1) The person was engaged in fishing during the relevant period. (2) There were significant reasons for the person's inability to satisfy the strict eligibility criteria. (3) Those reasons were not attributable to the fault of the person. (4) It was for those reasons that the person was unable to satisfy the strict eligibility criteria. The Effect of the Court of Appeal's decision in Puglisi 82 The reasoning of the Court of Appeal in Puglisi v Administrative Decisions Tribunal of New South Wales Appeal Panel [2001] NSWCA 298 is of critical importance to the application of clause 214C(2)(c)(iii) to the present circumstances. The Court of Appeal held that the ADT Appeal Panel had not erred in law in concluding that clause 214C(2)(c)(iii) did not apply to the Appellants who were commercial fishers. The ADT Appeal Panel had earlier set aside a decision of Judicial Member Wilson remitting an application for a Hand Gathering endorsement (under the Act) to the Review Panel for reconsideration so to take into account that commercial and economic factors are "significant reasons" for the purposes of clause 214C(2)(c)(iii). 83 In Puglisi, the Appellants were a family of commercial fishers engaged in catching gemfish for sale. The method of fishing for gemfish undertaken by them came under the definition of "ocean fish trawl fishery" and was therefore a "restricted fishery". Clause 186 of the Regulation created two classes of endorsement in the restricted fishery : northern and southern zone endorsements. The Applicants were unsuccessful in relation to the northern zone because they were not able to demonstrate a sufficient level of fishing activity in that zone. They had decided not to fish for gemfish in this zone because it was considered uneconomic to do so during the relevant period. 84 While dismissing the appeal, in several respects the Court of Appeal disagreed with the Appeal Panel's interpretation of clause 214C(2)(c)(iii). I discuss them below in paras 85 – 89. 85 The Appeal Panel described the Appellants' conduct as resting on an "error". The Court of Appeal expressed the view that the word "fault" in clause 214C(2)(c)(iii) does not include mere errors. The Court said at para 48: "In the present context, an applicant can be responsible or accountable for an outcome without that outcome being that applicant's fault. An outcome can be within an applicant's control or be the result of an applicant's conscious decision-making process without it being the applicant's fault. These states of affairs are only to be seen as revealing "fault" if either the outcome or the way in which the outcome came to pass was blameworthy or wrongful or defective or imperfect or delinquent or culpable or open to censure; or involved misconduct, or a failure to achieve a particular standard, or a deficiency, or a dereliction of duty, or a misdeed, or a transgression; or amounted to a piece of misconduct or to a transgression or a failing; or merited censure, blame or criticism." 86 The Appeal Panel applied the ejusdem generis aid to, or rule of, construction in determining the meaning of clause 214C(2)(c)(iii). The Panel's analysis is set out at paras 45 and 46: "45 The difficulty that is presented is this. The first two sub-paras of para (c), (i) and (ii), clearly seek to protect the position of an applicant who has suffered a misfortune that is out of his or her control and which has led to that person being unable to meet the eligibility requirements. It could be said that these provisions seek to give a benefit to an applicant who, to use a common saying, 'through no fault of his / her own', has been prevented from obtaining the necessary catch history – a supervening factor has intervened. Viewed in this way, the phrase 'other significant reasons (that are not attributable to the fault of the person)' would carry the meaning of significant reasons 'beyond the control of the applicant', which reasons are analogous to the ones mentioned in sub-para (i) and (ii). 46. On this construction what the maker of the regulations was seeking to achieve was a catch-all provision that allowed for mishaps other than the ones enumerated in sub-para (i) and (ii) to be allowed for by the review panel." 87 The Court of Appeal discounted the view that clause 214C(2)(c)(iii) was the third member of a genus based on either 'involuntariness' or 'want of fault'. The Court said at paras 49 and 50: "49 It is true that at least one connotation of the expressions "accident" and "misadventure" is that the events so described happened against one's will and without one's control. But though illness and incapacity are often outside one's control, they can be within it. One may become ill through entirely voluntary decisions not to take medical advice or not to take simple precautions like not sitting outside in cold weather after washing one's hair. One may be incapable of satisfying the eligibility criteria because of entirely voluntary decisions to consume drink or drugs, or because of injuries sustained during a voluntary attempt at suicide. Hence no genus based on "involuntariness" exists. 50 Is Clause 214C(2)(c)(iii) the third member of a genus based on want or fault? The words "accident" and "misadventure" are words which point against the existence of fault. They exclude the case of a fisherman who ran his vessel aground by reason of his own negligence. But that is not true of "illness" and "incapacity". Those conditions may arise from fault. Further, there is no requirement in Clause 214C(2)(c)(i) and (ii), as there is in Clause 214C(2)(c)(iii), that the relevant reason be "not attributable to the fault of" the applicant. Hence the suggested genus does not exist." 88 The Appeal Panel stated at para 50 that the objects of the Act supported the conclusion that the words "not attributable to the fault of the person" (in clause 214C(2)(c)(iii)) confined the scope of 'other significant reasons' to explanations that relate to circumstances that lie beyond the personal control or conduct of the applicant. The objects of the Act are set out in s 3 of the Act:- "3 (1) The objects of this Act are to conserve, develop and share the fishery resources of the State for the benefit of present and future generations. (2) In particular, the objects of this Act include: (a) to conserve fish stocks and key fish habitats, and (b) to conserve threatened species, populations and ecological communities of fish and marine vegetation, and (c) to promote ecologically sustainable development, including the conservation of biological diversity, and consistently with those objects: (d) to promote viable commercial fishing and aquaculture industries, and (e) to promote quality recreational fishing opportunities, and (f) to appropriately share fisheries resources between the users of those resources." 89 The Court of Appeal stated at para 45 that the extremely general language of s 3(2) of the Act does not point to any particular construction of clause 214C. 90 The Court of Appeal held that the appellants could not invoke the ground of review within clause 214C(2)(c)(iii) because they were not "unable" to satisfy the endorsement eligibility criteria. The Court said at para 52: "The word "unable" in Clause 214C(2)(c)(iii) should be construed in a manner which is cognate with "ability" in Clause 214C(2)(c)(i) and (ii). The meaning of Clause 214C(2)(c)(iii) would not change if it read "for other significant reasons . . . the person lacked the ability to satisfy the eligibility criteria". To be "unable" to satisfy the eligibility criteria is to be incapable of doing so or to lack power to do so. It is to lack the quality which makes satisfying the criteria possible. It is to lack the means of satisfying the criteria. It is to lack the potential to meet the criteria. It is to suffer a disability preventing one from satisfying the criteria." 91 The Court of Appeal noted at para 56 that in some statutory contexts, the word "unable" may extend beyond impossibility. Relying on Cussen J's analysis of the word "unable" in Leeder v The Mayor, Etc, of the Town of Ballarat East [1908] VLR 214 at 223-224, the Court of Appeal said that in the context of legislation establishing periods limiting the ability of plaintiffs (including plaintiffs of limited intelligence and means, whose mental powers may have been affected by injury) to commence litigation, the expression "unable" is to be construed differently from that which appears in the context of a legislative enactment regulating the distribution of licences for the exploitation of a scarce resource (Cussen J's view was that "unable" can refer to "an act or series of acts which in existing circumstances this person could do if he directed his mind to nothing else, but which, having regard to other circumstances, he could not reasonably be expected to do.") 92 The appellants in Puglisi submitted that the word "unable" included a practical inability arising from economic rationality as distinct from complete impossibility. The Court of Appeal concluded that in the context of clause 214C, neither the meaning of "unable" expressed by Cussen J nor the meaning advanced by the appellants was available because it went far beyond what was justiciable. The Applicants' Inability to Satisfy the Eligibility Criteria 93 Mr Slockee has not been able to produce any "verified records" to show that he did in fact satisfy the eligibility criteria specified in clause 191N(8). In relation to his own returns, this is because he has no such records. In relation to George Tully's returns, this is because Mr Tully records of his sales of pipis have either been lost or thrown out. In the absence of any verified records, the Applicants cannot rely on George Tully's evidence, that he had sold pipis to bait shops and recorded them on his catch returns as "pilchards", to show that they did in fact satisfy the eligibility criteria (within the meaning of clause 214C(2)(b). 94 As was observed by the Court of Appeal in Puglisi, clause 214C(1) does not permit the Review Panel to take into account factors other than those listed in clause 214C(2). The Court said at para 46: "It permits the Review Panel to consider any circumstances relevant to the determination that is the subject of the review request : those circumstances cannot go beyond those relevant to the ultimate issues identified in clause 214C(2)(a), (b) and (c) (i) – (iii), and cannot by themselves widen them." 95 In order for the Applicants to successfully invoke clause 214C(2)(c)(iii), they must establish that: (1) They were engaged in fishing during the relevant period. (2) There were significant reasons for the Applicants' inability to satisfy the strict eligibility criteria. (3) The industry practice in relation to the monthly catch returns and / or the cultural factors relied upon are "significant reasons" (within the meaning of clause 214C(2)(c)(iii)). (4) Those reasons were not attributable to the fault of the Applicants. (5) It was for those reasons that the Applicants were unable to satisfy the strict eligibility criteria. 96 Even were I to be satisfied that conditions (1) to (4) have been met, I must be satisfied that the Applicants were unable to satisfy the strict eligibility criteria because of industry practice and / or cultural factors. In other words, I must be satisfied that the Applicants were unable to submit 8 catch returns in the years 1986 to 1993 that indicate a catch of pipi (and at least one of those returns relates to a month prior to January 1991) because of industry practice and / or cultural factors. 97 In relation to Form 49, I am satisfied that Mr Slockee genuinely and reasonably believed that, consistent with the common practice in the fishing industry in northern NSW at the time, fish (including pipis) taken for bait, but not for sale, were not required to be recorded on the forms, and that their use was only for research purposes. 98 In relation to Form 19, I am satisfied that Mr Slockee genuinely held the same belief but that this belief was not reasonably held. 99 I am satisfied that during the years 1986 – 1990 (prior to the introduction of Form 19) Mr Slockee collected pipis for bait, and to give away, during at least 8 separate months. However, adopting the meaning ascribed to the word "unable" by the Court of Appeal in Puglisi, I am not satisfied that Mr Slockee was unable to complete the returns in the required manner. It therefore follows that I am not satisfied that the Applicants were unable to satisfy the eligibility criteria. 100 Were it permissible for me to give a meaning to the word "unable" similar to that expressed by Cullen J, my finding may well have been a different one. However, it would then have been necessary for me to determine whether the reasons relied on by the Applicants were first, significant and secondly, whether there was a sufficient causal connection between either (or both) of these reasons and the Applicants' inability to satisfy the eligibility criteria. 101 It also follows that from 1990 – 1993 (consequent upon the introduction of Form 19) I am not satisfied that the Applicants were unable to satisfy the eligibility criteria. 102 I have taken into account all the evidence before me and the detailed submissions. Given the Applicants' demonstrated activity in the restricted fishery during the criteria years, it is understandable that they feel aggrieved by the decision under review. However, I am bound by the Court of Appeal's decision in Puglisi. Accordingly I can find no basis for setting aside the decision under review. Orders (1) The decision under review is affirmed. (2) No award as to costs. 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