Clark v NSW Fisheries [2005] NSWADT 77

CITATION: Clark v NSW Fisheries [2005] NSWADT 77 DIVISION: General Division APPLICANT PARTIES: Matthew Jason Clark RESPONDENT NSW Fisheries FILE NUMBER: 043248 HEARING DATES: 19/11/2004 SUBMISSIONS CLOSED: 11/19/2004 DATE OF DECISION: 04/06/2005

BEFORE: Montgomery S - Judicial Member APPLICATION: Charter boat fishing licence - grant of licence - Fisheries Management Act - charter boat fishing licence - grant of licence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Fisheries Management (General) Regulation 2002 Fisheries Management Act 1994 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT D Paterson, solicitor ORDERS: The decision to refuse the issue of a transferable charter fishing boat licence to Mr. Clark is affirmed

REASONS FOR DECISION 1 Mr Clark has applied 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. NSW Fisheries has refused that application and Mr Clark has applied for review of that decision. 2 Mr Clark has been game fishing in NSW since 1985. He started to gain experience on commercial vessels in 1995 and decided to continue in the charter fishing industry to eventually become an owner/operator. He fished two seasons in Cairns on charter vessels and he completed his coxswain's skipper's ticket in early 1996 and his Master 5 skipper's ticket in 1997. 3 In late 2000 Mr Clark contacted NSW Fisheries in regard to the possibility of obtaining a licence. He was advised that he did not meet the criteria for a licence under the legislation that was in force at that time as he did not own or had not operated a charter vessel that historically participated in the charter fishing industry. 4 Applications for charter fishing boat licences originally closed on 30 September 2000 but the closing date was extended to 30 April 2001. In mid 2001 Mr Clark was advised that licences were being issued to individuals whom had invested in the industry. Shortly thereafter he requested approval to lodge a late application for a licence. He was required to provide good reasons as to why a late application should be accepted and he provided a detailed submission in support of his late application in February 2002. 5 It was subsequently agreed that Mr Clark's late application would be accepted and he lodged his application for a transferable licence on 10 April 2003. The application was refused on the basis that he had not satisfactorily demonstrated eligibility for a licence. An internal review affirmed that decision. The legislation 6 At the time of Mr Clark's initial application Division 3 of the Fisheries Management Act 1994 ("the Act") provided for the review of decisions relating to the issue of a licence by a panel established by the Minister. Section 226V of the Act, which was within Division 3, provided for the conduct of those reviews and the criteria for the issue of licences by a review panel. Section 226V(2)(c) of the Act provided a review panel could recommend that the person be issued with a licence if it was satisfied that the person had, before 22 October 1997, clearly demonstrated his or her financial investment or commitment in a boat for use in connection with marine and estuarine charter fishing in New South Wales and that the person met other specified criteria. 7 The provisions of the then section 226V(2)(c) of the Act are now reflected in clause 315 of the Fisheries Management (General) Regulation 2002 ("the Regulation") which states: "315 Conduct of review … (2) On conducting a review of a decision of the Minister to refuse to issue a licence to any person, the Director-General may recommend that the person be issued with a licence, but only if the Director-General is satisfied that: … (c) the person had, before 22 October 1997, clearly demonstrated his or her financial investment or commitment in a boat for use in connection with marine and estuarine charter fishing in New South Wales and: (i) the boat has been actively used for guided recreational charter fishing activities in the marine and estuarine charter fishing sector for at least 50 days during any period of 24 consecutive months between 22 October 1995 and 4 August 1999, or (ii) there are valid reasons why the person failed to satisfy the eligibility criteria in subparagraph (i) and it is fair and reasonable in the circumstances to grant the person a licence, or …" 8 The date 22 October 1997 is significant because on that day the Minister for Fisheries announced a warning against further investment in the NSW recreational charter fishing boat industry because of moves to cap the number of operators in the industry at the level then present. 9 There are two classes of licence; transferable and non-transferable. Clause 301 of the 2002 Regulation sets out the eligibility criteria for a transferable licence. These criteria were previously found in section 226H of the Act. Clause 301 of the 2002 Regulation provides: "301 Eligibility criteria—transferable licence (1) 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: (a) the person is entitled to claim a history of operations in respect of a boat that: (i) was actively used for guided recreational charter fishing activities in the marine and estuarine charter fishing sector before 22 October 1997, and (ii) 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, and (iii) was used in accordance with the requirements of the certificate of survey for the boat at all times during the period in which it was used for those activities, and (b) the certificate of survey for the boat referred to in paragraph (a) was, at all times during the period in which it was used for those activities, consistent with the type of licence applied for by the person. Note: 22 October 1997 is the date on which the Minister announced a ministerial warning against further investment in the New South Wales recreational charter fishing boat industry, because of moves to cap the number of operators in the industry at the level then present (see second reading speech for the Fisheries Management Amendment Bill 1997 , which inserted Part 4A in the Act, Hansard of 22 October 1997, page 1208). (2) If any one of the eligibility criteria is not satisfied, the person is not eligible for a transferable licence. (3) A person can be eligible only for the same number of licences as boats in respect of which the person is entitled to claim a history of operations. That is, if the person is entitled to claim a history of operations in respect of one boat, the person can be eligible for a licence in respect of one boat only." How does Mr Clark say he meets the criteria? 10 Mr Clark is unable to demonstrate a history of participation in NSW waters but contends that the time he spent attaining his education as well as the money he spent fishing should be regarded as an investment in the NSW charter boat fishing industry. Accordingly, he asserts that he made an investment in the charter fishing industry prior to 22 October 1997. 11 Mr. Clark had submitted that his involvement with charter operations in Queensland and the time and money spent attaining his qualifications should be regarded as an investment in the NSW Charter Fishing Industry. He is unable to claim an entitlement to a history of operations under clause 303 of the 2002 Regulation. 12 Mr. Clark does not appear to own or have ever owned a boat. He has referred to a lease agreement for the vessel 'Dadsboat' but it seems that this was merely a verbal agreement that was never brought to fruition. 13 The intent of the legislation is to cap the number of operators in the charter fishing boat industry by licensing those vessels with a history of participation in the industry. The licensing scheme was designed to be inclusive in relation to those operators with a genuine history of industry participation and those persons who had invested in a vessel or had a low level of participation in the NSW charter fishing industry during the criteria period. 14 Mr. Clark contends that to be eligible under the legislation all that was needed was the evidence of purchase or commitment in a boat for use in the industry. He says that he made an investment in the industry in obtaining qualifications that would allow him to be the master on his own charter-fishing vessel. 15 He was working towards owning his own vessel, gaining the experience and qualifications before it's purchase. In doing so, he invested thousands of dollars and logged over 200 days of sea time on charter fishing vessels. He further contends that he has invested in the industry and been historically involved in the industry. As it is an offence to operate a commercial or trading vessel without the correct certificates of competency, to become an owner/operator he had to obtain his qualifications first, as the vessel is useless without it. He says that he found it economically unprofitable to purchase a vessel to accrue the time during the criteria period but that nevertheless he is entitled to a licence as much as a person who invested in a vessel for use in the industry. He believes, therefore, that the decision to not grant him either a transferable or a non- transferable licence was incorrect. Decision 16 I do not agree with Mr. Clark's interpretation of the legislation. In my view the provisions of clause 315 of the Regulation are clear. In order to satisfy the eligibility requirements on the basis of his financial investment in the industry he must have had financial investment or commitment in a boat before 22 October 1997. 17 I agree with the reasoning process set out in the internal review decision and accordingly it is my view that the decision under review was the correct and preferable decision. In my view Mr. Clark's investment was in his education. The fact that this eduction was achieved through experience on a boat is not sufficient to meet the criteria. Order The decision to refuse issue of a transferable charter fishing boat licence to Mr. Clark is affirmed.