Set aside by Appeal : CITATION: Baker & Anor -v- Minister for Fisheries [2003] NSWADT 142 DIVISION: General Division APPLICANTS Graham Baker PARTIES: Amychild Pty Limited RESPONDENT Minister for Fisheries FILE NUMBER: 033018 HEARING DATES: 24/02/2003 SUBMISSIONS CLOSED: 02/24/2003 DATE OF DECISION: 06/13/2003 BEFORE: Montgomery S - Judicial Member APPLICATION: Fisheries Management Act - fishing licence - transfer of endorsement on licence - Fishing licence - transfer of endorsement on licence MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Fisheries Management (General) Regulation 1995 Fisheries Management (General) Regulation 2002 Fisheries Management Act 1994 CASES CITED: APPLICANTS REPRESENTATION: M Smith, barrister RESPONDENT N Perram, barrister ORDERS: The decision by the Minister for Fisheries to cancel the transferable charter fishing boat licence held by Billfish Tuna & Reef Charter Boat Agency in respect of the vessel 'The Game Fisher' is set aside. Background 1 These proceedings relate to a decision by the Minister for Fisheries ("the Minister") to cancel a charter fishing boat licence issued to Billfish Tuna and Reef Charter Boat Agency on 11 January 2001 in respect of a vessel known as "The Game Fisher". Billfish Tuna and Reef Charter Boat Agency is a business operated by Amychild Pty Ltd ("APL"). Mr. Baker is a director of APL. 2 The decision was made to cancel the licence on 24 September 2002. An internal review was sought and that review was finalised on 27 November 2002. The original decision was affirmed on review. 3 This application was commenced by Mr Baker, however it is common ground that the licence should have been issued in the name of APL and not in that company's business name or in the name of Mr Baker as APL's nominee. Consequently, APL was joined as a party to these proceedings. The Applicants seek review of the decision by the Minister to cancel the licence that had been issued in respect of the vessel 'The Game Fisher'. 4 These are parallel proceedings to those in matter Number 023305 ("the Ultimate II matter") which relate to another APL vessel known as 'The Ultimate II'. In deciding the Ultimate II matter I have addressed most of the issues in contention in this matter. The applicable legislation is the same and the Minister's decision to cancel the licence for "The Game Fisher" arose because of similar policy changes to those which gave rise to the cancellation of the licence for 'The Ultimate II'. 5 As was the case in the Ultimate II matter, the decision to cancel the licence was purported to have been made under clause 226O(a) of the Fisheries Management (General) Regulation 1995 ("the 1995 Regulation"). It is not in dispute that at the time of the decision the applicable regulation was the Fisheries Management (General) Regulation 2002 ("the Regulation"). The decision was taken after it was determined that APL no longer met the eligibility criteria for a transferable licence. The reasons for decision provided following the internal review made reference to APL's failure to satisfy various requirements under the Fisheries Management Act 1994 ("the Act"). Applicable Legislation 6 In my reasons for decision in the Ultimate II matter I have set out the applicable legislation and the details of the Director of Fisheries' "policy clarification" of 19 February 2001. That "policy clarification" purported to clarify the position in relation to the use of history of activity and survey certificates from other States to satisfy eligibility for issue of a charter fishing boat licence in NSW. It serves no purpose to repeat those details here. The Minister's Case 7 It is not in dispute that APL's business was and is "guided recreational charter fishing" and the fishing involved is "game fishing". Accordingly, clause 298 of the Regulation required APL to hold a licence issued under Part 4A of the Act. It is also common ground that a licence was sought and the licence was issued. The background to the issue of the licence is set out in some detail in the reasons for decision given by the Minister's delegate following the internal review of the original decision to cancel the licence. Those reasons also provided a reasonable statement of the Minister's position. The Minister's delegate stated: "REASONING PROCESS I have thoroughly considered the issues outlined. I agree with and adopt the following reasons as my finding of fact on these points. (i) An application for a transferable charter fishing boat licence for the authorised activities of near shore bottom fishing and sport fishing, game-fishing and deep sea bottom fishing was made by the applicant on 19 September 2000. The payment for the licence application was receipted on 26 September 2000. (ii) The Minister made a decision on 11 January 2001 under 226H and 226J of the Regulations upon considering the applicants' application and eligibility for a transferable recreational charter fishing boat licence and determined that the applicant was eligible for the licence as, at the time, it appeared that the eligibility criteria had been satisfied. (iii) Following the policy clarification on 19 February 2001 on not accepting interstate survey to qualify for a NSW Guided Recreational Charter Fishing Boat Licence, a review was conducted for all licences issued including the original decision to issue a transferable charter fishing boat licence to the applicant. (iv) On 18 June 2001, the Minister identified that the applicant had claimed a history of charter boat fishing operations during the period 1 January 1996 to 30 June 1997 and had relied on QLD certificates of survey and registration to gain a licence in NSW. To operate an interstate commercial charter vessel in NSW, the vessel had to have held a valid unexpired interstate Certificate of Survey and be issued with a Temporary Permit by Waterways, which provides local operating conditions and crewing requirements. The Minister could see no evidence of such authorisation from Waterways during the period 1 January 1996 to 30 June 1997. In addition, the Minister also identified that the evidence provided to demonstrate at least 100 days of charter boat fishing activities was insufficient to satisfy the eligibility criteria. (v) June 2002, the review panel made a decision that there was no jurisdiction to review an "implicated" third party review matter under clause 226V(1) of the Regulation, as an objection had not been lodged directly against the issue of the licence. Subsequently, the panel referred the matter back to the Minister to consider the applicant's ability to meet the eligibility criteria under clause 226O(a) of the Regulation. (viii) Having regard to the additional submissions of the applicant during the review process and the original assessment process, the Minister was satisfied that the applicant was entitled to claim a history of charter boat fishing operations associated with the vessel CFB 12318 "The Game Fisher", in the period 1 January 1996 to 30 June 1997. This incorporates active charter boat fishing activities prior to 22 October 1997. However, the evidence to demonstrate 100 days of participation was not accepted by the Minister on the grounds that it was self-serving and did not assist in corroborating the applicant's previous statutory declarations on the 100 day criterion. In addition, the Minister could see no evidence of Waterways survey for the vessel during the period in which a history of operations in NSW waters had been claimed (that is, to support active participation in NSW waters prior to 22 October 1997 and during the 100 days claimed in the period between 1 January 1996 to 30 June 1997). The Minister concluded that if the vessel was used in NSW waters for commercial charter fishing operations, the vessel was used in contravention to the laws of this State. (ix) The Minister has power under section 227 of the Fisheries Management Act 1994 (the Act) to delegate functions to the Director and has the power to cancel charter fishing boat licences where a person ceases to be entitled to such a licence. (x) The Director, as delegate of the Minister pursuant to section 127 of the Act, has the power to cancel a licence if an applicant ceases to be eligible for a licence by failing to meet eligibility criteria. (xi) Upon consideration of the applicants' submissions and eligibility for a charter fishing boat licence, the Director made a decision under 226O(a) of the Regulation to cancel the licence, having determined that the transferable charter fishing boat licence issued to the applicant no longer met the eligibility criteria under clause 226H (transferable licence). (xii) The Director determined there were no additional grounds to justify amending the decision made under clause 226O(a) of the Regulation for cancellation of the transferable charter fishing boat licence." 8 Pursuant to Clause 309(a) of the Regulation, the Minister may cancel or suspend a licence if the holder of the licence ceases to be eligible for the licence. Mr Perram, for the Minister, submitted that APL does not own and has no rights of control over the Game Fisher and that it has never held a NSW Survey in relation to that vessel. The impact of that argument is that APL has not met the criteria set out in subclauses 301(1)(a)(iii) and (b) of the Regulation. 9 Mr Perram argued that APL has ceased to be eligible for the licence because it never satisfied those criteria. The Minister was therefore authorised to cancel or suspend the licence pursuant to clause 309(a) of the Regulation. Mr Perram presented a similar argument in the Ultimate II matter. 10 There are however, distinct differences between the factual circumstances of this matter and those of the Ultimate II matter. Mr Perram referred to clause 301(1) of the Regulation which provides: "A person is eligible for a transferable licence in respect of a boat owned or otherwise under the control of the person if the person satisfies the Minister that: ..." 11 Mr Perram observed that APL never actually owned The Game Fisher. The boat was in fact leased for an 18-month period. The first lease ran from 1 January 1996 to 30 June 1996. The second lease ran from 1 July 1996 to 30 June 1997. He argued that to comply with clause 301(1) the vessel, to which the licence applies, has to be owned or it has to be under control of the licensee. Therefore the vessel has not been capable of being characterised as falling within clause 301(1) since 1997. At the time of the issue of the licence in respect of the Game Fisher, APL was not capable of being described as satisfying either the notion of ownership, or alternatively that of control. 12 Notwithstanding that being the case, the licence was issued on the basis of a NSW Fisheries' policy that existed at the time. Mr Perram conceded that in the past, NSW Fisheries applied a practice of shelf licences. That practice assumed that it was possible to issue a licence in respect of a vessel that was not active. In issuing the licence, NSW Fisheries applied that practice in relation to the Game Fisher. The Applicants' Case 13 Mr. Smith, for the Applicants, argued that clause 309(a) of the Regulation does not allow cancellation of a licence that has been granted after acceptance of the historical eligibility for the purposes of the original licence application. Mr. Smith made the same argument in the Ultimate II matter. The basis of that argument is set out in the reasons for decision in the Ultimate II matter and need not be repeated here. 14 Mr. Smith submitted that The Game Fisher met the clause 301(1)(i) and clause 301(1)(ii) criterion to the extent that is needed to claim the previous owner's history. The evidence shows, and the Minister accepts, that The Game Fisher was actively used for guided recreational charter fishing activities in the marine and estuarine charter fishing sector before 22 October 1997. It is not in dispute that APL leased The Game Fisher from 1 January 1996 to 30 December 1998. This incorporates active charter boat fishing activities prior to 22 October 1997. The Minister was therefore satisfied that APL was entitled to claim a history of charter boat fishing operations associated with "The Game Fisher", in the period 1 January 1996 to 30 June 1997. 15 Clause 301(1)(ii) of the Regulation requires that the vessel was actively used for those activities for at least 100 days during any period of 24 consecutive months between 22 October 1995 and 4 August 1999. 16 The Minister's delegate refused to accept the evidence of such use between 1 January 1996 and 30 June 1997 provided by Mr Baker on behalf of APL for the reason that it was "self serving". No evidence was presented to contradict Mr Baker's evidence. Mr. Smith submitted that the Minister's objection is manifestly spurious, and use is established beyond doubt from APL's booking register. 17 Mr Baker attended the hearing and gave uncontested evidence to support the use of the vessel for at least 100 days during that period. APL's booking register was placed in evidence and the summary of use for The Game Fisher indicates in excess of the 100 days required. 18 With respect to the Minister's case that The Game Fisher was not covered by a certificate of survey at all relevant times, the Applicants relied on Mr. Smith's argument outlined in the reasons for decision in the Ultimate II matter. 19 Mr. Smith referred to the original application form on which the application with respect to The Game Fisher was made. That form indicated that survey certificates of inter-state authorities would be accepted. It is not in dispute that NSW Fisheries previously applied such a policy. Nor is it in dispute that the decision under review relied on the Director of Fisheries' "policy clarification" of 19 February 2001. Mr. Smith argued that the "policy clarification" insisted upon proof of issued NSW Waterways Authority permits to operate and not Waterways Authority certificates of survey as required by clause 301 of the Regulation. 20 Mr. Smith referred to the leases for The Game Fisher and observed that they provided for the previous owner to continue the vessel in survey and to ensure all necessary licences were current to enable the use of the vessel for commercial game fishing charter. The leases envisaged that the vessel would be chartered from Bermagui and Port Stephens. 21 The evidence before the Tribunal shows that Queensland certificates of surveys were obtained in relation to the whole period of use. Mr. Smith submitted that it is clear from the evidence that certificates of survey and registration were regarded as taking backdated effect over a one-year survey period from the date of the actual survey. This is reflected in the normal practice adopted by both the Queensland and NSW authorities. He argued that this is commonsense, since it was the date of annual survey by the official surveyor not the date of issue of the certificate, which was the critical safety concern. 22 Mr. Smith argued that it is undoubted that the use of the vessel at Bermagui and Port Stephens was under the supervision of officers of the regulator, and it must be inferred that they were satisfied that it met the requirements of that regulator in relation to survey. There is no evidence of any concern by the Waterways Authority as to the vessel' s use, and no evidence that any prosecution was ever contemplated. 23 Mr. Smith submitted that on the evidence now available, the Tribunal should be satisfied that the vessel did hold a Queensland survey which was acceptable to the Waterways authority and permitted its lawful use in NSW waters pursuant to s 19(3) of the Commercial Vessels Act 1979 ("the CVA"). The decision-maker's conclusion that there was contravention of the Act is not founded upon evidence capable of supporting such a serious assertion, and was improper. 24 With respect to the Minister's assertion that it should not be permissible to hold a 'shelf' licence that is not attached to a vessel, Mr Smith asserted that this view denies the practical reality of the industry. He argued that it is foolish to administer the Act on the basis that people in the industry would have to purchase a boat, and then be unable to use it until their historical eligibility is accepted. This could involve a dispute over many years as in the present case. A prospective licensee should not have to go through the process of leasing a boat, making a fresh application for a licence to attach to it based on the history of the boat and run the gauntlet of another two years before getting to the Tribunal. 25 Mr. Smith conceded that at the time of the decisions to grant and to cancel The Game Fisher licence, the vessel was not owned by APL or under APL's control. He also conceded that if one concentrates on the words of clause 301 of the Regulation and the licence referred to is a licence that attaches to a boat. Mr. Smith observed that this fact did not seem to have bothered NSW Fisheries at the time because it was treating it as being an inactive licence in the name of the vessel, but was waiting for APL to nominate another vessel. 26 As to the existence of the Minister's discretion in clause 309 of the Regulation and the relevant considerations, Mr. Smith repeated his submissions made in the Ultimate II matter. I do not restate those submissions here. He argued that if APL failed to satisfy the eligibility criteria because of processing delays by the Queensland Authority, or because of some licensing omission by the owner of the vessel, then this would bring APL's circumstances within either of the situations provided for under clause 315(2)(b) of the Regulation. This was because of circumstances beyond APL's control and because before 22 October 1997 APL was actively engaged in relevant activities for the required duration using The Game Fisher. 27 He argued that it would be manifestly unjust now to rely on this defect as a ground of cancellation. The Tribunal should find accordingly and set aside the Minister's decision. Findings 28 For the reasons that will become apparent, it is not necessary that I determine whether clause 309(a) of the Regulation authorises the Minister to cancel a licence after revisiting the eligibility criteria for the grant of a licence. This was also the case in the Ultimate II matter. I repeat the observations that I made in the reasons for decision in that matter insofar as they relate to my view that a licence issued under this scheme being a species of property right. Without determining whether there is any application of the extended eligibility criteria under clause 315 of the Regulation, I also repeat my observations that the circumstances of this matter would not justify the exercise of a discretion in a way that resulted in the cancellation of the licence in respect of The Game Fisher. 29 With respect to the issue of the history of operations, it is my view that APL has satisfied the criteria set out in subclauses 301(a)(i) and 301(a)(ii). The evidence shows that The Game Fisher was actively used for guided recreational charter fishing activities in the marine and estuarine charter fishing sector before 22 October 1997. The evidence also shows that The Game Fisher was actively used for those activities for at least 100 days during any period of 24 consecutive months between 22 October 1995 and 4 August 1999. 30 For the same reasons given in the Ultimate II matter, I do not agree with the Minister's assertion that APL had not complied with clauses 301(1)(a) or 301(b) of the Regulation because there were no certificates of survey during the relevant periods. I agree with Mr Smith's argument regarding the application of the CVA. I have set out the details of that argument in the Ultimate II matter and I do not propose to repeat them here. 31 In essence, it is my view that the vessel was in survey under the relevant QLD authority in relation to the whole period of use. Pursuant to section 19(3) of the CVA it was therefore deemed to be covered by a temporary permit. 32 It is my view that the deemed temporary permits pursuant to section 19(3) of the CVA are sufficient to meet the requirements of clause 301 of the Regulation. It follows that APL has satisfied the eligibility criteria and was therefore entitled to be issued with the licence in respect of The Game Fisher. 33 The remaining issue raised by the Minister relates to the NSW Fisheries practice of permitting shelf licences. In my view, the scheme envisaged by the Act and the Regulation is one in which participants in the scheme will transfer vessels while retaining a licence which was initially attached to that vessel. This is the practical reality of the industry but it is also reflected in various provisions within the Regulation. 34 Clause 305(5) specifically provides that a transfer of a history of operations need not be accompanied by a transfer of the boat concerned. However, a person who transfers a history of operations without transferring the boat ceases to be eligible for a licence in respect of the boat because the person ceases to be entitled to claim the history of operations. Clause 306 anticipates that from time to time a boat will be replaced. It does not follow that the licence ceases to exist because the boat is replaced. Pursuant to clause 306(2) a person's entitlement to a history of operations, in respect of the boat being replaced, is transferred to the replacement boat if the Minister approves the replacement. In some circumstances it will be appropriate that a licence be cancelled, for example if the licensee has no further use for the licence. It is clear that in such circumstances the Minister is empowered to cancel the licence. Pursuant to clause 309(g) the Minister may cancel or suspend a licence if the boat is lost at sea or disposed of by the holder of the licence. 35 In my view, the interpretation urged by the Minister would make the scheme unworkable. The legislature could not have expected that the scheme would be administered on the basis that a licence could only attach to a vessel owned or controlled by the licensee. This ignores the realities of the industry. The scheme envisaged by the Regulation must be interpreted in the light of practical reality. The attachment to a vessel owned or controlled by the licensee is a requirement of eligibility. In my view it can be satisfied by circumstances such as those that exist in this matter where the ownership or control has been established for the purposes of satisfying the entitlement to claim a history of operations. Having established the entitlement, it is immaterial that the ownership or control has passed. 36 The system of shelf licences that has come into existence is a practical solution to the problems that would result if the Regulation was interpreted as requiring that the licence attach to a vessel owned or controlled by the licensee. It allows a licensee to dispose of a vessel to which a licence has attached and to retain the entitlement to the history of operations. The history of operations can then be transferred pursuant to clause 306(2). Clause 305(5) anticipates that the disposal of a vessel will not necessarily be accompanied by a transfer of the history of operations of the boat concerned. Having disposed of the vessel, the licensee can then acquire a new vessel and attach to it both the history of operations and the licence issued in respect of the former vessel. 37 Having formed this view, it follows that I must conclude that the decision to cancel the licence issued in respect of The Game Fisher was not justified. Accordingly, in my view, the correct and preferable decision is that the Minister's decision should be set aside. The consequence of this decision is that the licence remains in force. I note for completeness that the licence should correctly identify the licensee as Amychild Pty Limited. Orders The decision by the Minister for Fisheries to cancel the transferable charter fishing boat licence held by Billfish Tuna & Reef Charter Boat Agency in respect of the vessel 'The Game Fisher' is set aside. 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