Sewell v Minister for Fisheries [2001] NSWADT 124

CITATION: Sewell v Minister for Fisheries [2001] NSWADT 124 DIVISION: General Division APPLICANT PARTIES: Keith Walter Sewell RESPONDENT Minister for Fisheries FILE NUMBER: 003326 HEARING DATES: 28/03/2001 SUBMISSIONS CLOSED: 03/28/2001 DATE OF DECISION: 08/01/2001

BEFORE: O'Connor K - DCJ (President) APPLICATION: Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence MATTER FOR DECISION: Principal matter Administrative Decisions Legislation Amendment Act 1997 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Fisheries Management (General) Regulation 1995 Fisheries Management Act 1994 CASES CITED: APPLICANT REPRESENTATION: D Leamey, solicitor RESPONDENT C Cory, solicitor ORDERS: 1 Decision under review affirmed

1 The applicant seeks review of a decision of the respondent Minister to refuse to grant him a Class A (ie. skipper's) garfish hauling net endorsement in respect of the ocean haul restricted fishery. Part 8 of the Fisheries Management (General) Regulation 1995 (the Regulation) deals with the regulation of activity in restricted fisheries and includes cl 212E(4) which confers the relevant power and cl 212F which sets out the eligibility criteria. The Regulation is made pursuant to the Fisheries Management Act 1994 (the Act). 2 The Tribunal's jurisdiction in relation to decisions refusing endorsements is conferred by s 126(1)(a) of the Act and commenced on 1 March 1999: see Gov Gaz 1999, p 969 commencing Schedule 5.14[2] Administrative Decisions Legislation Amendment Act 1997. Jurisdiction 3 There was some consideration at the hearing as to whether the decision in issue fell within the review jurisdiction of the Tribunal. Two applications for endorsement were accepted by the agency in the past. There is an application clearly in proper form with the relevant fee dated 28 January 1995 made at the time when the restrictions affected the ocean haul fishery were being introduced. The decision refusing that application was made on 25 February 1995. The material contains reference to a further application accepted by the agency dated 15 February 1996, and the undated letter in reply from Mr Holt refusing the application (Ex A, p 33). 4 The applicant's present review application to the Tribunal seeks to locate the relevant decision founding jurisdiction in a letter from the Director dated 27 July 1999. That letter indicated that a reconsideration of the applicant's representations in respect of the garfish net endorsement had taken place in line with a commitment reflected in a letter from an officer of the agency dated 14 May 1999. The letter of 14 May 1999 issued following the conclusion of District Court proceedings brought by the applicant, where as a result of a settlement the Director had agreed to issue to the applicant a hauling net (general purpose) endorsement. The letter of 14 May 1999 stated 'the Department will now commence a review of your eligibility for a garfish net authority in accordance with clause 212F of the Regulation.' On 19 May 1999 the applicant presented a garfish hauling net for inspection at the agency's Wollstonecraft office. It was found to satisfy the requirements as to dimensions. 5 The letter dated 27 July 1999 from the Director (set out in full later in these reasons) reached the same decision to refuse the endorsement as was reflected in the decision issued on 25 February 1995. The applicant applied for review on 22 September 1999. There were attempts at mediation in the intervening period. The earlier decision was confirmed on internal review, by letter dated 19 September 2000. 6 The statement of reasons accompanying that letter was described as a statement of reasons given pursuant to the relevant provisions of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). The applicant was advised of rights to apply to the Tribunal for review and relevant time periods. On the other hand the covering letter asserted that the original decision under consideration was that of 25 February 1995 and at the foot of the statement of reasons (the substance of which is set out later in these reasons) the decision-maker, Ms Cory, solicitor to the Director (Ms Cory appeared at the hearing) expressed doubts as to jurisdiction. The application for review was lodged on 17 October 2000 and the hearing held on 28 March 2001. 7 The Director has communicated with the applicant in a confusing fashion. The most recent of the decisions, in my view, prior to the events of 1999 is not that of 1995 but that reflected in the letter of Mr Holt issued around late February 1996. The Director did not refer to the Tribunal Act in the letter of 29 July 1999 and identifies the decision in issue as that of 1995, clearly outside the jurisdiction of the Tribunal (as would be the 1996 decision). However the Director has purported to be bound by the Tribunal Act in making the decision on internal review; and in advising the applicant of rights of external review following that decision. 8 The fairest construction of these circumstances is, I consider, that the decisions now in issue are fresh decisions in relation to an application treated by the agency as having been renewed in April 1999, but waiving the need to submit a fresh application form corresponding to the requirements of cl 212E. I am satisfied that the Tribunal has jurisdiction. Applicable Law 9 The law applicable to this case is mainly to be found in Division 4A (cll 212A-212Y) of Part 8 of the Regulation. For the purposes of s 111 of the Act, the ocean haul fishery is declared to be a restricted fishery (cl 212B). Licensed commercial fishers must hold an endorsed licence containing endorsements permitting them to take fish for sale in the restricted fishery. There are three classes of endorsement. A Class A endorsement authorises the holder to take fish for sale using one of more types of hauling net specified in the endorsement in a particular region of the fishery (cl 212D). Class A endorsements are required by skippers, while a Class B is sufficient for crew. Class C endorsements deal with the use of a purse seine net. The hauling nets for which at present endorsements must be obtained are a hauling net (general purpose), a garfish net (hauling) - the type of net in issue in this case, a garfish net (bullringing) and a pilchard, anchovy and bait net (hauling) (cl 212A). 10 It has been government policy for some time not to increase the 'fishing effort' (as it is commonly referred to) in NSW waters. Since 1 January 1991 strict controls have applied giving expression to that policy (initially implemented 14 July 1989 and the subject of Circular 80A issued by the Director (ex A, p 41) on 22 January 1990). One aspect has involving seeking to ensure that no additional nets are introduced into restricted fisheries. In the case of the ocean haul restricted fishery the eligibility requirements set out in cl 212F seek to give effect to this policy. 11 As previously noted, the Minister's power is conferred by cl 212E(4) which provides that: '(4) The Minister may endorse the commercial fishing licence of a person who satisfies the eligibility requirements for the endorsement or who is the nominated fisher of a person who satisfies the eligibility requirements for the endorsement.' 12 The powers of refusal in cl 212E(5) are not relevant to this case, Clause 212E(6) provides that: '(6) The Minister may endorse the commercial fishing licence of a person who applied for an endorsement before the commencement of this Division if the applicant is otherwise eligible for the endorsement under this Division.' 13 Ms Cory said that this provision covered this case as the application was dated 28 January 1995. On the basis of my finding as to jurisdiction, I do not regard it as now applicable. 14 The eligibility requirements are found in cl 212F: '212F. Eligibility for an endorsement