CITATION: Henderson v Director General, NSW Fisheries [2005] NSWADT 6 DIVISION: General Division APPLICANTS PARTIES: Gregory Henderson and Graham Henderson RESPONDENT Director General, NSW Fisheries FILE NUMBER: 043065 ; 043066 HEARING DATES: 15/06/2004 and 17/08/2004 SUBMISSIONS CLOSED: 08/24/2004 DATE OF DECISION: 01/10/2005 BEFORE: Rice S - 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 Fisheries and Oyster Farms Act 1935 LEGISLATION CITED : Fisheries Management (General) Regulation 1995 Fisheries Management (General) Regulation 2002 Fisheries Management Act 1994 Greenaway v Director, Department of Fisheries [2000] NSWADT 173 Jewell v Director-General, NSW Fisheries [2004] NSWADT 295 CASES CITED: Madge -v- Minister for Fisheries [2001] NSWADT 73 O'Grady -v- Minister for Fisheries [2002] NSWADT 48 Stevens -v- Minister for Fisheries [2001] NSWADT 80 APPLICANT REPRESENTATION: In person and on behalf of Mr Graham Henderson RESPONDENT Dr S Thompson, solicitor ORDERS: 1. The decision under review is varied only to the extent that a recommendation be made to the Minister that the Minister consider, in light of the findings made, granting to the applicants access to the Hawkesbury River for the Handlining and Hauling Crew endorsement and the Meshing endorsement on their commercial licences. REASONS FOR DECISION What happened? 1 Gregory and Graham Henderson are brothers. They each hold a commercial fishing licence and each licence has various endorsements that permit the taking of fish lawfully in restricted fisheries, including "Estuary General Restricted Fishery" endorsements. 2 An estuary general endorsement must specify the area in which the endorsement holder is authorised to fish, and a fisher's activities under the endorsement are limited to that area (clauses 209A and 209B of the Fisheries Management (General) Regulation 2002). That area, called the "authorised area of operations", must be specified by reference to a single primary fishing region. The area for which the Hendersons' endorsements have been specified is "primary fishing Region 4", which runs from approximately Taree to The Entrance. 3 The authorised area of operations may also include "other specified ocean beaches and estuaries within the same bioregion as the primary fishing region" (cl.209A(2)). Region 4 is in the Central Bioregion (Taree to Ulladulla), as are regions 5 and 6. It is therefore possible for the Hendersons' endorsements to be for fishing in region 4 and, as well, at specified ocean beaches and estuaries within, say, region 5 (The Entrance to Wollongong). 4 That is in fact what the Hendersons seek. They seek access, under their endorsements, to specified estuaries within region 5 as well, specifically the Hawkesbury River. They have been refused that access, and the question for this Tribunal is whether that decision is the correct and preferable one. How is access to 'other specified estuaries' decided? 5 The question begged by clause 209A is: 'how is it to be determined when and on what basis a fisher's authorised area of operations "may also include other specified ocean beaches and estuaries"?' 6 The answer, says the Director-General, is in a document titled 'Zoning Rules', which, he says, was promulgated by the Minister on 16 September 2002. The document provided to me is unsigned and undated; it is a copy of an original from which it appears the original was undated and unsigned. The document does not refer to cl.209A. 7 Under a heading "Access to areas outside the primary fishing region", the document states, relevantly: The zoning scheme restricts access to the primary fishing region, but also provides access for specified endorsements, to other specified areas. 8 I assume that this is a reference to cl.209A(2). The document fails to say that those areas are limited to areas within the same bioregion as the primary fishing region but, in light of the terms of cl.209A, it must be understood to be limited in that way. 9 The document explains that fishers who seek what it calls "additional access" are assessed according to criteria set out in a table. I assume that "additional access" is intended to mean the permission to take fish under an endorsement in a specified area not in the primary fishing region, as anticipated by cl.209A(2). 10 The criteria for additional access are very similar to those for obtaining an endorsement in the first place, requiring a certain number of catch returns within a period that show fish taken by a specified method, but relating to the particular area to which access is sought. Indeed the text introducing the table in the document says that "[f]ishers who applied for additional access have been assessed against the same eligibility criteria used to allocate restricted fishery endorsements in 1997 . . . [with] two exceptions . . .". 11 The Director-General submits that clause 209A clearly leaves it to the Minister to decide how the additional access is to be granted, and that the document titled 'Zoning Rules' is clearly the policy anticipated by clause 209A. In the absence of a date, a signature, and any explicit reference to cl.209A this is not clear, but it can reasonably be inferred. It would be preferable if I could rely on the Regulation and the document themselves rather than on an inference. 12 In the circumstances, relying on the terms of clause 209A, the terms of the document titled 'Zoning Rules', and representations by the legal representative for the Director-General, I accept that the document titled 'Zoning Rules' was Government policy in force at the time the reviewable decision was made. 13 The question then is whether the criteria for additional access set out in the policy are met by the catch returns of Gregory Henderson and Graham Henderson. The Director-General's decision that they are not is the subject of this review. Basis for assessing eligibility 14 It appears from the Director-General's Statement of Reasons that he relied on what he calls the 'validated catch history" (VCH) when assessing eligibility. An internal review (the "desktop review") conducted by the Director-General states that "The VCH demonstrates there are insufficient returns for Hawkesbury River". 15 In Jewell v Director-General, NSW Fisheries [2004] NSWADT 295 at [8]-[10] I described the VCH, and said that when assessing eligibility for an endorsement the correct and preferable decision is reached by reference not to the VCH but to the catch returns themselves (see also Stevens -v- Minister for Fisheries [2001] NSWADT 80 [71]-[73]; Greenaway -v- Director, Department of Fisheries [2000] NSWADT 173 [51]-55]). 16 In this case it is not eligibility for an endorsement that is being assessed, but for "additional access". The means of assessing that entitlement is set out in the policy document. That document is ambiguous, but in my view it directs attention not to the VCH but to the original catch returns. I called for production of those original catch returns during the course of the hearing. 17 The policy document is ambiguous because it explicitly directs attention to the original catch returns but as well it impliedly directs attention to the VCH. It directs attention to the original catch returns when it says "[f]ishers who applied for additional access have been assessed, against the same eligibility criteria used to allocate restricted fishery endorsements . . . " (my emphasis). It further directs attention to the original catch returns when it refers, throughout the table setting out the eligibility criteria, to "catch returns in the years 1986 to 1993 that indicate . . . " (my emphasis). However it impliedly directs attention to the VCH when it heads the table of eligibility criteria with "Validated catch history criteria to be satisfied for travelling access to a specific estuary or ocean beach zone". Use of the term "travelling access" threatens to complicate matters further, but it appears to equate with "additional access" and I proceed on that basis. 18 For the following reasons I read the policy as requiring that eligibility for additional access be assessed by reference to the original catch returns, not to the VCH. First, the policy clearly intends that eligibility for additional access be assessed on the same basis as eligibility for endorsements, and the basis for assessing eligibility for endorsements is properly the original records not the VCH. Secondly, eligibility for additional access is expressly assessed by reference to what the "catch returns indicate", and that is best determined by looking at the catch returns themselves, not an unknown person's summary of them. In my view the table heading that refers to VCH is inconsistent with the text in the policy that introduces the table, and the text within the table. 19 As it happens, the Hendersons appear to have not yet agreed with the record that the Director-General would like to say is a VCH. 20 It was because eligibility for additional access is assessed by reference to the original catch returns, not the VCH, that Mr Gregory Henderson gave evidence. If eligibility were to be determined by reference to the VCH then that document speaks for itself, and evidence from the fisher as to what his fishing actually was would be irrelevant, particularly when the VCH is said by the Director-General to be a record agreed to by the fisher. But in this matter the legal representative for the Director-General cross-examined Mr Gregory Henderson extensively on his claims as to actual fishing, and made submissions on how the original catch returns should be read. The conduct of the hearing accorded with my view that, consistently with assessment of eligibility for endorsement, the policy relies on the original catch returns as the basis of assessing eligibility for additional access. 21 The original catch returns are themselves problematic as a means of deciding what methods were used as, until July 1990, they required the fisher to record only the "main method" used, not all methods. Thus it is important at times to look not only at what catch return record but, as the eligibility requirements state, what they "indicate"; the whole of the document may well indicate that a method was used that was not recorded as the main method for the month. After July 1990 the original catch return could "indicate", by, say, the species caught, methods used but not recorded even though there was provision for recording more than one method. 22 I agree with Mr Henderson's submission that I should ignore the fact that the Restricted Fisheries Review Panel, when dealing with an application for review of a refusal to grant an endorsement, did not make a finding as to fishing activity in the Hawkesbury River. That question appears not to have been in issue in those proceedings. What does catch return 9208 indicate? 23 Both Mr Graham Henderson and Mr Gregory Henderson seek additional access to the Hawkesbury River for their various estuary general endorsements. Their applications can be dealt with together as, pursuant to a Shared Fishing Agreement lodged with the NSW Fisheries, their fishing effort has been divided equally between them. It was Mr Gregory Henderson who attended the hearing and gave evidence on his behalf and that of his brother. Reference below to Mr Henderson is a reference to Mr Gregory Henderson. 24 For additional access under their Handlining and Hauling Crew endorsement the Hendersons must show "at least 8 estuary waters catch returns in the years 1986 to 1993 that indicated (sic) fish were taken using at least one estuary river general method" in the Hawkesbury River. Of the nine endorsements for which additional access criteria are set out in the table in the policy, only this one uses the word "indicated". All others say "indicate". I treat this as an irrelevant difference in terminology. 25 Mr Henderson says that at least 8 estuary waters catch returns in period that indicate that fish were taken showing at least one estuary river general method: the meshing method. As the requirement for additional access under the Meshing endorsement is at least 8 estuary waters catch returns in the period, if the Hendersons satisfy the requirement for additional access under their Handlining and Hauling Crew endorsement they will at the same time satisfy the requirement for additional access under their Meshing endorsement. 26 The Director-General concedes that eight of the Hendersons' estuary waters catch returns in the years 1986 to 1993 indicate use of the meshing method, but says that only seven show that fish were taken. The eighth – 9208 for the Hawkesbury region – was a 'nil' return. 27 In written submissions Mr Gregory Henderson says that "you don't go meshing without catching something", and that a nil return means that the fish were "mixed in with fish from other areas to make up enough to send to market". In evidence he says that a nil return could also mean that the fish were kept as bait or given away. 28 Contrary to submissions by the Director-General, the criteria for additional access do not preclude taking account of fish not taken for sale. The policy refers only to what is indicated by the catch returns. Catch returns are not limited to recording fish taken for sale – the prescribed form is for returns "as to the catch, sales, output, gear used in connection with the operations, or business of such persons" (s42 Fisheries and Oyster Farms Act 1935 and cl.210(14) Fisheries Management (General) Regulation 2002). Fish caught but kept as bait or given away qualify as "catch" for purpose of the catch return form. Whether fish are taken for sale is relevant to "catch history" (s51 Fisheries Management Act 1994 and cl.135 Fisheries Management (General) Regulation 2002), but catch history is irrelevant to assessing eligibility for many endorsements, and is clearly not a consideration under the policy when assessing eligibility for additional access. 29 The catch return 9208 for the Hawkesbury River is a nil return. Eligibility depends on what the catch returns indicates. Other evidence can assist in deciding what the catch return indicates, but if there is no indication at all on the catch returns, then other evidence is irrelevant. I am not able to assess entitlement on the basis of evidence from, say, Mr Henderson, if the entitlement is not at least "indicated" by the catch returns (see eg Madge -v- Minister for Fisheries [2001] NSWADT 73 [21]-[23]). As it happens Mr Henderson's evidence would be of little help: he has no recollection of whether catch return 9208 for the Hawkesbury River was an occasion when he caught fish he did not sell, or mixed fish from another region and, crucially, whether in either event meshing was the method used to catch the fish. 30 The catch return in fact indicates that a nil return may have been correct. Mr Henderson has written on the form "Too windy to find fish and net slimed up". I note Mr Henderson's evidence they did not usually fish the Hawkesbury River in August. 31 I therefore agree with the Director-General that 9208 for the Hawkesbury River cannot count towards eligibility for additional access to the Hawkesbury River for the Hendersons' Handlining and Hauling Crew and Meshing endorsements. What do certain 'ocean' returns indicate? 32 Alternatively, however, Mr Henderson says that there are catch returns other than just these eight that indicate that he used meshing to take fish for sale in the Hawkesbury River. He says that he and his brother commonly fished in the Hawkesbury River between October and July each year, and that he recorded some of their Hawkesbury River catch as "ocean" catch because his understanding of the dividing line was different from the actual dividing line used by the Director-General. 33 The latter was the subject of extensive cross-examination of Mr Henderson by the Director-General. For purposes of the fishing codes that mark the various fishing regions, the Director-General draws a line, effectively north-south, between Box Head to the north and Barrenjoey Head to the south. Fishing east of that line is ocean fishing in zone 6, and fishing west of that line is estuary fishing in areas including the Hawkesbury River. If the Hendersons caught fish west of the Box Head-Barrenjoey Head line, then the Director-General would expect the fish to be recorded as estuary catch in the region then numbered 2121. 34 Mr Henderson says that he understood the line that divided ocean fishing from 'Hawkesbury River' fishing was drawn west of the Box Head-Barrenjoey Head line, roughly north-south from Patonga to West Head. This line is generally where the Hawkesbury River meets Broken Bay, opening out to Brisbane Water, Pittwater, and the ocean beyond. Thus if the Hendersons caught fish in any of west of the Box Head-Barrenjoey Head line, but east of the Patonga-West Head line, Mr Henderson recorded it as ocean catch in one 1006 and not, as the Director-General would expect, as estuary catch in the region then numbered 2121. 35 The Director-General's cross-examination of Mr Henderson strongly suggested that his belief that the dividing line was Patonga-West Head is not plausible. There was no evidence as to how the line was advised to fishers, or was read by others. The suggestion that Mr Henderson's reading of the line was not plausible based on what was suggested to be an obvious reading of a map that was in evidence. 36 I do not agree that Mr Henderson's understanding is not plausible. I accept that that is how he understood the line to be drawn. At the time that Mr Henderson was filling out the catch returns he did not know how the lines were drawn for purposes of distinguishing between estuary and ocean fishing. The line he says he had in mind was one that marks, in practical terms, the end of the Hawkesbury River. Mr Henderson simply called anything beyond that line 'ocean' in that it was not the Hawkesbury River. The Hendersons did not fish in Pittwater which, although eastwards of the line he drew to mark 'ocean' clearly breaks off to the south as an estuary. Nor did they fish in Brisbane Water which, although eastwards of the line he drew to mark 'ocean' clearly breaks off to the north as an estuary. The Hendersons fished at Lion Island, which is in reasonably open water, exposed to the ocean and not enclosed by Box Head and Barrenjoey Head. 37 I do not think it is implausible that Mr Henderson believed that what was caught around Lion Island, beyond the end of the Hawkesbury River was in an area that should have been recorded as ocean catch. My view would be different if he had tried to maintain that fish caught near, say, Wagstaff to the north or Observation Point to the south, was 'ocean catch'. 38 That being the case, ocean returns that Mr Henderson completed for ocean zone 1006 may indicate that fish were in fact taken in the region 2121 by meshing. His evidence is that they used meshing around Lion Island – for which he recorded ocean catch in 1006 – and that he caught tailor, trevally, mackerel and salmon there by that method. He makes no claim for other fish recorded as caught in 1006 as he concedes that he would have caught such species either in actual ocean waters (eg Killcare or Terrigal), or by another method (eg hauling). 39 The only catch returns that shows both fishing in 1006 and species (tailor) that indicate the Hendersons may have been meshing near Lion Island, are 8905, 9203 and 9204. I note that had the Director-General relied only on the VCH he may not have considered 9203 as the zones appear to have been incorrectly entered as 1004 and 1006; reference to the original catch return shows that zones 1005 and 1006 were recorded. 40 I have considered the whole of the each return, and Mr Henderson's evidence, and am of the view that the 'indication' given by these returns is equivocal. 41 For 8905 both hauling and meshing have been recorded. Mr Henderson's evidence is that not only did they catch tailor by meshing at Lion Island, but between December and the end of May they also caught tailor by hauling at Little Beach. The tailor in 8905 could have been caught either at Lion Island by meshing, or at Little Beach by hauling, and there is no material available to me that enables me to say which is the more likely to have happened. 42 For 9203 and 9204 only 'beach haul' method has been recorded. Being a 'new' form, ie post 1990, it allows the recording of specific ocean fishing methods, so meshing would have to have been recorded as 'other'. Meshing is not recorded on 9203 or 9204. As is the case with 8905, the tailor in 8905 could have been caught either at Lion Island by meshing, or at Little Beach by hauling, and there is no material available to me that enables me to say which is the more likely. 43 I am therefore unable to say, on the basis of the catch returns, that there is an eighth catch return in the relevant period that indicates that the Hendersons took fish by the method of meshing in what the Director-General recognises as the Hawkesbury River. Shared catch with Peter Henderson? 44 The Hendersons claimed that they should have been given a 30% share of the catch of Mr Peter Henderson on the basis of a Shared Fishing Agreement lodged with the NSW Fisheries. The Director-General declined to give effect to that agreement on the basis that Peter Henderson's catch returns do not record either Gregory or Graham Henderson as having been his crew during the relevant period. 45 This issue is one that was primarily concerned with the Hendersons' entitlements to endorsements in the first place. But as the decision to refuse additional access turns in part on the view the Director-General formed as to the entitlement under the Shared Fishing Agreement, I have looked at this issue. I called for and have inspected the original catch returns for Peter Henderson and I agree with the Director-General that do not record either Gregory or Graham Henderson as having been his crew during the relevant period. 46 In submissions Mr Gregory Henderson provided a copy of a document that shows, he says, "that myself Graham and Peter Henderson did work together on many occasions". I agree that the document does appear to show that, but "working together" is not enough. The document shows that Peter Henderson crewed for Gregory Henderson, but a Shared Fishing Agreement that enables Gregory to share in Peter's catch must be supported by evidence of Gregory having crewed for Peter. In any event, the records provided by Gregory Henderson show that Graham and Peter worked together in a region other than the Hawkesbury River, and so any entitlement that did arise would be irrelevant to the question of additional access I am considering. Not an "unjust" decision 47 In this case I accept Mr Henderson's evidence that, over a period of 8 years, he and his brother took fish by meshing, in the area that the Director-General recognises as the Hawkesbury River, in at least one more month than the seven months that the catch returns indicate. I accept his evidence that those fish, when caught, either were not recorded because they were not sold, or were mixed with fish from other regions to make up numbers large enough to sell. I accept therefore that the Hendersons have historical participation in the fishing effort in the Hawkesbury area, by way of meshing, to a level at or exceeding that required by the policy. 48 The Director-General, appropriately and correctly, pointed out that none of this is indicated by the catch returns, and that the policy is concerned only with what is indicated by the catch returns. I agree. It is on that basis that the Hendersons are not eligible for the additional access. I am obliged however to consider whether the policy produces an 'unjust' decision in the circumstances of this case (s64 Administrative Decisions Tribunal Act 1997). 49 The policy effectively replicates the manner of assessing entitlement for endorsements set out in the Fisheries Management (General) Regulation 2002. It asks the same question: whether the fisher can show historical participation in the fishing effort in that area, in a particular way, such that they should be permitted to continue to fish in that area in that way. It relies on the same material: catch returns and what they indicate. 50 To apply the policy when assessing additional access for an endorsement is only to apply the same considerations as the legislation applies for the endorsement in the first place. In fact it is marginally more lenient in its precise requirements. The policy does not give rise to an unjust decision in those circumstances. A harsh decision? 51 The decision, though not "unjust" in this sense, is nevertheless a harsh one. Despite what I accept as their actual historical participation, to the requisite level, in the fishing effort in the Hawkesbury River by way of meshing, the Hendersons are not eligible for additional access because the forms that one of them completed do not indicate that participation. The catch return forms, as the means by which eligibility is to be assessed, are insufficient for the task. 52 This is a feature of the legislative regime that is reforming the commercial fishing industry in NSW – the principal means by which historical participation is assessed so as to consider granting a future entitlement is reliance on a document that was not designed or completed for that purpose. Little store was put by the forms at the time; they were considered just another piece of paperwork required by a government official. The document itself is ambiguous as an expression of much of the information for which it is now relied on. The fishers who completed the forms, unaware at the time of the implications for their livelihood that the entries they made would have, years later, have the lowest literacy level of any group of otherwise able people that I have dealt with. Most of the fishers who have appeared before me, as applicants and witnesses, have barely functional levels of literacy, and rely on spouses or friends to carry out book-keeping and maintain records. It is unsurprising that fishers have been coming to the Tribunal to say that their loss of livelihood in these circumstances is unfair. 53 When the entitlement criteria under Regulation gave rise to results that were harsh – when, say, an entitlement could not be strictly established even though the historical participation was apparent, or there were strong mitigating factors – it was the case that this could be addressed by way of Ministerial discretion exercised pursuant to a recommendation (cl.214C(3) Fisheries Management (General)Regulation 1995 (Repealed); see eg O'Grady -v- Minister for Fisheries [2002] NSWADT 48 [35]-[37]). The provision for such a recommendation was not repeated in the Fisheries Management (General) Regulation 2002. 54 But the decision I am reviewing has been made under policy, and not a legislative provision. It may be that the Minister would be minded to exercise a discretion in the strict application of the policy in the circumstances. The Director-General might be minded to make a recommendation to that effect. Additional access for other endorsements? 55 Mr Henderson did not press for a review of the decision to not grant him and his brother additional access on their other endorsements: Prawning, Trapping, Eel Trapping, Mud Crab Trapping, Hand Gathering and Category One Hauling. As they are, however, technically part of the same decision and therefore covered by the application to this Tribunal, I note that an analysis along the same lines as I have been through above establishes that the eligibility requirements are not met. 56 I agree with the Director-General, even though his assessment was done on the basis of the computer summary (VCH) and not the original catch returns, that an insufficient number – in all cases nil – of catch returns indicate that fish were taken in the Hawkesbury area using the relevant method. Transferability of Ocean trap line 57 As well as the additional access entitlements, Mr Graham Henderson sought review of a decision to not allow his ocean trap and line endorsement entitlements to be available to a transferee of his fishing business. I note that the Director-General has since told Mr Henderson of his decision that the fishing business does satisfy the current transfer criteria for ocean trap and line fishery. There is therefore no need for me to decide that issue. Findings and orders 58 In summary, I find that the Hendersons are unable to show at least eight catch returns in the years 1986 to 1993 that indicates that fish were taken using any of the method of Meshing Prawning, Trapping, Eel Trapping, Mud Crab Trapping, Hand Gathering and Category One Hauling. 59 I find that the policy does not in the circumstances give rise to an unjust result. 60 I find therefore that the Hendersons are not eligible for the additional access they seek under their endorsements, and that that is the correct and preferable decision having regard to the parameters of the law as govern the decision. 61 I find as well that it is likely that the Hendersons have historical participation, to the requisite level in the relevant period, in the fishing effort in the Hawkesbury area by way of meshing. 62 Accordingly, I vary the Director-General's decision only to the extent that a recommendation be made to the Minister that the Minister consider, in light of the findings made, granting to the applicants access to the Hawkesbury River for the Handlining and Hauling Crew endorsement and the Meshing endorsement on their commercial licences. 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