Simmons -v- Minister for Fisheries [2000] NSWADT 174

CITATION: Simmons -v- Minister for Fisheries [2000] NSWADT 174 DIVISION: General Division APPLICANT Steven Simmons PARTIES: RESPONDENT Minister for Fisheries FILE NUMBER: 003140 HEARING DATES: 20/11/2000 SUBMISSIONS CLOSED: 11/20/2000 DATE OF DECISION: 11/28/2000

BEFORE: Smith MB - Judicial Member APPLICATION: Fisheries Management Act - fishing licence- endorsement on licence - Fishing licence - endorsement on licence MATTER FOR DECISION: Principal matter LEGISLATION CITED : Fisheries Management Act 1994 CASES CITED: Searle v Director General, NSW Fisheries [2000] NSWADT 53 Woodward v Minister for Fisheries [2000] NSWADT 143 APPLICANT REPRESENTATION: G Sirtes, barrister RESPONDENT C Cory, solicitor ORDERS: The decisions under review are affirmed.

1 This is an application brought under s 126 of the Fisheries Management Act 1994 (NSW) for review of a decision taken personally by the Minister on 15 December 1999 (see Exhibit 1 p.50). In it, the Minister approved a recommendation of a review panel in a report under reg 214C. This was that the applicant be refused a demersal fish trap endorsement and a line fishing (western zone) endorsement, both of them in the Ocean Trap and Line Restricted Fishery (Ex. 1 p.52). The decision was subsequently affirmed on internal review. 2 The factual background to the application was largely uncontested and can be stated shortly. 3 The applicant currently uses a fishing boat called the Patrol to make a living as a commercial fisherman. Prior to 1991 the vessel was not used by anyone in the fishing industry, but was used as a patrol boat by a Melbourne waterways authority. In 1991 it was acquired by a commercial fisherman licensed in NSW, Mr Blanche, who obtained all necessary fishing authorities to use it in his business in conjunction with another, lighter, boat. The applicant's statement in Exhibit 1 p.56, says that "the vessel permit was issued on the 5/3/91." 4 In 1992 the applicant and his friend Mr Lawler decided to leave their occupations in the construction industry in favour of commercial fishing. They agreed to buy the Patrol from Mr Blanche for $15,000, conditionally upon their obtaining necessary commercial fishing licences both personally and for use of the boat. At that time there was a "freeze" preventing new boat and commercial fishing licences being issued. Documents explaining these policies and dated March 1992 are in evidence before me. These pointed out that "because of the major changes taking place in the industry, particularly the introduction of managed or limited entry fisheries, warnings have been given in regard to investment in boats and gear. Under the proposed management plans participation in individual fisheries will be limited to eligible boats or operators. No assurances can be given in regard to authorisations for any fishery prior to finalisation of fishery management plans. It is expected that the freeze on transfers will be modified as individual plans come into effect." 5 Although the applicant has no recollection of seeing these policy documents, he became aware that to become professional fishermen Mr Lawler and he would need to purchase a boat currently licensed for commercial use and to obtain a special approval for the transfer of its boat licence. I accept that he was told by local fishing officials that this approval would depend upon an assessment of the previous owner's fishing activities as revealed in his fishing returns. This assessment would, in effect, consider the degree to which the boat had been used for full-time fishing activities. He recalled the local officer looking through Mr Blanche's fisheries returns and saying, in effect, that there was a 75% chance that the relevant officer at Fisheries head office would approve a transfer. 6 On this evidence, the then "freeze" policies had exemptions which allowed some new entrants to commercial fishing in unrestricted fisheries if they could acquire a boat with a boat licence and with a history of active fishing. Although no documentation setting out the formulation and detail of such a policy is in evidence before me, its existence is consistent with the contemporaneous documents and I accept the general effect of the applicant's evidence. 7 In July 1992 Mr Lawler on behalf of himself and the applicant applied for the transfer of the Patrol's NSW commercial fishing boat licence from Mr Blanche. The transfer was apparently approved, and the boat was used in the name of Mr Lawler in August and September 1992. The fishing returns for these months show hand-lining, trolling and fish-trapping in ocean waters. 8 Unfortunately, Mr Lawler found that he was susceptible to sea-sickness and could not continue this vocation. His interest in the Patrol was sold to Mr Simmons, who on 27 October 1992 applied for the transfer of the boat licence to his name. This application, like Mr Lawler's, contained the declarations: "I understand that management plans for all NSW fisheries are to be implemented with entry being limited in most cases. I understand that the vessel I am purchasing is not guaranteed access to any particular fishery for which it is not already endorsed." 9 The applicant gave evidence, in effect, that to the extent that he understood anything from these declarations, he thought they referred to the need for special approval of the application for transfer, in particular in the light of the extent of the use of the boat by its previous owners. I accept that in 1992 he had no understanding that in the future his access to commercial fishing might depend upon establishing how the Patrol had been used before it was acquired by Mr Blanche. Indeed, it seems to me that no-one within or outside the Department could have known or expected this in 1992, since the new policies which reflected this requirement were publicly explored for the first time in 1995-96 and were introduced as law in the 1997 amendments to the Regulations. As the applicant said in evidence: in 1992 "no-one knew what changes were coming". 10 A commercial fisherman's licence and a boat licence for the Patrol were issued to the applicant in November 1992, under cover of a letter which informed him: "At the present time there is a freeze on the issue of fisherman's licences in New South Wales. Your fisherman's licence has been issued under a variation to the freeze which allows for applicants who have purchased a licensed fishing boat which is over 7.5 metres in length or which is authorised under Fisheries Notification OG1 or endorsed for an estuary prawn trawl fishery. Please note that while you may fish with other boats you have acquired and hold current licenses for, you must retain a license boat in one of the categories set out above to retain your fisherman's licence. …" 11 The applicant's file shows that he immediately commenced use of the Patrol, and from November 1992 submitted fishing returns showing him catching fish in ocean waters by means predominantly of handline, but also using trolling and dropline. He gave evidence that since purchasing the Patrol he had spent $20,000 on it, and that it provides the means of support for himself and his family. If he does not obtain the present endorsements, he would have to give up this occupation and sell his boat without its license or raise $28,000 to $30,000 to purchase an endorsement. 12 The applicant gave evidence that he understood that, while Mr Blanche sold the Patrol in July 1992, he continued to hold his commercial fishing licence and to used it in activities using his other boat. The evidence before me suggests that Mr Blanche remained licensed until 1998, but does not reveal what endorsements he was able to obtain under the 1997 scheme of restricted fisheries. There is no evidence before me as to what catches Mr Blanche made at any particular time using any of his boats. 13 The primary criteria which the 1997 amendments to the Regulations making the Ocean trap and line fishery a restricted fishery requiring special endorsements are in reg 191E. Relevant to the present application are: " 191E Eligibility for endorsement (1) Demersal fish trap endorsement . A person is eligible for a demersal fish trap endorsement if the Minister is satisfied that the person submitted to the Director at least 6 ocean waters catch returns in the years 1986 to 1990, and 4 ocean waters catch returns in the years 1991 to 1993, that indicate that fish were taken using a fish trap of a kind known as a bottom or demersal fish trap. (2) Line fishing (western zone) endorsement. A person is eligible for a line fishing (western zone) endorsement if the Minister is satisfied that the person submitted to the Director at least 6 ocean waters catch returns in the years 1986 to 1990, and 4 ocean waters catch returns in the years 1991 to 1993, that indicate that fish were taken by the method of line fishing. (8) If the Minister is satisfied that the catch history associated with a fishing business satisfies any of the eligibility criteria set out in this clause, the owner of the fishing business is taken to have satisfied that criteria, even if the owner did not personally take the fish for sale or submit any catch returns to the Director. In such a case, however, the person who actually took the fish for sale and submitted the returns (for example, while working as an employee of the fishing business) does not, by having done so, satisfy the criteria. (9) In determining a person's eligibility for an endorsement, the Minister may have regard to the records kept by the Director (including licence records and records of fish taken by a commercial fisher). (10) The catch history associated with a fishing business is to be determined in accordance with clause 135 (3). (11) In this clause: ocean waters catch return means a return under section 42 of the 1935 Act that relates to takings of fish in ocean waters." 14 The reference to reg 135(3) is to a definitional provision whose overt purpose is for use in provisions governing the current requirements as to who can be given a commercial fishing licence for the first time. These include people who acquire "a recognised fishing operation", the definition of which contains requirements as to a catch history which is to be determined under reg 135(3). It 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." 15 In relation to the above criteria, counsel for the applicant accepted that not only could the applicant not establish the lodgment personally of the returns for the years 1986 to 1990 required in reg 191E(1) and (2), but also that it would be impossible to establish that an earlier user of the Patrol could have lodged any such returns in relation to a catch using that boat. On the above history of the Patrol, these concessions must be inevitable. 16 As I understood counsel's principal submission, and at the risk of compressing its elaboration, he sought to overcome this inability to satisfy the 1986-90 catch returns history requirements by persuading me: (i) that it would be unfair now to make the applicant's continuance in fishing activities dependent upon establishing a catch history for the Patrol which was patently not required in 1992 when the boat licence transfer was approved; (ii) that this unfairness could be avoided by applying reg 191E(8) and 135(3) by reading the Department's current policy on catch history attribution so as to allow the applicant to be attributed with the fishing history of Mr Blanche prior to Mr Blanche purchasing the Patrol and while using other boats; and (iii) that determination of what that catch history was and whether it would satisfy reg 191E(1) and (2) should be remitted for further investigation. 17 In relation to (ii), counsel submitted that this attribution would be consistent with cl 6.3 of the "NSW Fisheries Licensing Policy, November 1996", which provides: "6.3 Did I receive catch history when I purchased my boat before 9 June 1994? Fishers who purchased a boat or boat 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." 18 Unfortunately, counsel's submission does not persuade me. The apparent intention of reg 191E(8) and its, perhaps clumsy, adoption of reg 135(3) is to allow attribution of another person's catch history where the applicant for endorsement can "associate" his current fishing business with another person's past activities. Where there is no current association between the two persons, a relevant "association" of the another person's catch history at least needs the applicant to trace some asset (including an intangible asset such as a fishing authority) used in the current fishing business back to the another person's activities during the historical period identified in the primary criteria for endorsement. I consider that it would be beyond the scope of reg 191E(8) to allow this process to encompass another person's historical fishing activities which had no real relationship to what had been acquired by or transferred to the applicant. 19 On the evidence in the present case, in my opinion, neither the applicant nor Mr Lawler purchased or otherwise acquired any part of Mr Blanche's fishing business other that that which might be related to Mr Blanche's use of the Patrol after Mr Blanche purchased it in 1991. On the evidence before me I would not "associate" with the applicant's current business any of Mr Blanche's 1986 to 1990 fishing activities. I can find no factual basis for considering that any of Mr Blanche's catch returns from these activities would appropriately be treated as "associated" with the applicant's current fishing business. In this respect, I consider it is relevant that, since Mr Blanche continued to operate a commercial fishing business after he sold the Patrol, no implication is available that he sold to the applicant and Mr Lawler any aspect of his business other than that which was related to the Patrol. I would not draw such an inference from the skimpy evidence as to the actual terms of the sale. I therefore consider that there is no scope in the present case for the application of reg 191E(8) to assist the applicant to satisfy reg 191E(1) or (2). 20 Furthermore, in view of my above opinions on the language and intent of reg 191E(8), I have some doubt whether, as a matter of law, the Director could adopt a current policy or "guideline" for use under reg 135(3) which could produce under reg 191E(8) an "associated" catch history of the sort argued for by counsel for the applicant. In any event, I do not read the "NSW Fisheries Licensing Policy, November 1996" as providing for this. In particular, cl 6.3 of that Policy plainly suggests that, in a situation when the transferor of a boat has continued in business as a commercial fisherman, "normally" the transferee should not be treated as if he or she had acquired the catch history taken by the transferor with other boats. I consider that such an approach is reasonable and is appropriately applied in the present case. In the present case I would not depart from the implications of cl 6.3 of this Policy, even if I had power to do this. 21 The applicant's argument fails upon my above opinions and findings without my rejecting the submission that there is an unfairness in the new Restricted Fisheries regulations now requiring the applicant to produce his own or an inherited or acquired catch history dating back to 1986. Clearly there is an element of unfairness, even a significant one. However, this is the inevitable, and presumably deliberate, consequence of the adoption in 1997 of criteria based on fishing activities a decade earlier notwithstanding that the adoption of such criteria was neither foreshadowed nor reasonably foreseeable during the criteria period. 22 If these criteria had the status only of fisheries policies guiding a discretion on whether to give endorsements, I might have been able under s 64 of the Administrative Decisions Tribunal Act 1997 (NSW) or otherwise to assess the justice of their strict application in the present case in the light of the absence of clearer warnings to the applicant when he was allowed to enter the fishery in 1992 by his purchase of the Patrol. However, the criteria have the status of law: they are enshrined in Regulations which I, and the Minister, are bound to apply until or unless a change is made to the regulations. [No submission was put to me that the regulations are legally invalid.] 23 Notwithstanding the apparent unfairness to the applicant, I am insufficiently informed as to the deliberations which led to the making of the 1997 regulations to be able to form any opinions on their general propriety, nor to make any recommendations for legislative change, even assuming that this is a proper function for the Tribunal. 24 The applicant's counsel referred me to passages in Searle v Director General, NSW Fisheries [2000] NSWADT 53. Regrettably, I remain unclear how they support his submissions. The case itself concerned a decision completely different to the present refusal of an endorsement. 25 The applicant's counsel's written submissions suggested that a power to avoid reg 191E's requirements of a 1986-90 history could be found in the Tribunal's powers on review under s 63 of the Administrative Decisions Tribunal Act 1997 (NSW). It is enough to say that I do not consider that I have wider powers than those of the Minister, for the reasons which I gave in Woodward v Minister for Fisheries [2000] NSWADT 143 at [45-48]. 26 Other aspects of the Tribunal's powers which I canvassed in Woodward do not arise in this case, since the applicant's counsel made no submissions seeking to invoke the extended eligibility criteria and powers of the review panel under reg 214C. It therefore enough for me to note my own opinion that the applicant could gain no assistance from that provision. 27 In the present case, the applicant's case must be considered, and fails, by reference to the criteria in reg 191E alone. For the above reasons I have concluded that the correct and preferable decision by the Minister under reg 191F was that the applicant is not "a person who satisfies the eligibility requirements for an endorsement" of either of the types sought. I also conclude that no departure from this decision should be contemplated by either the appeal panel under reg 214C or the Minister under reg 214D. In my opinion the decisions under review should therefore be affirmed.