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Bell v Australian Fisheries Management Authority
Administrative Appeals Tribunal (Australia)28 February 2005
ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATIVE DIVISION No T2001/144
Re MICHAEL BELL Applicant
And
AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Respondent
DECISION
Tribunal Mr J Handley, Senior Member Assoc Prof B Davis, Member
Date 28 February 2005
Decision The decision under review is affirmed.
(Sgd)
John Handley
FISHERIES - review of decision allocating quota – respondent adopted recommendations of an advisory panel to set quota on basis of average catch of best three years in four year period between 1994 and 1997 – increase in quota permitted if exceptional circumstances are found – discussion of meaning of "exceptional circumstances" – engine of applicant’s vessel broke down and unable to fish – consequent reduction in income – repossession of boat and bankruptcy – applicant fished from smaller boats with single net in Tasmanian waters – alternative basis for quota allocation inconsistent with his fishing returns and with Policy – quota was increased on review – basis for increase not apparent – decision affirmed
Fisheries Administration Act 1991 s6
Bannister Quest Pty Ltd v Australian Fisheries Management Authority Federal Court, 14 August 1997, 819/1997) Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Re Skoljarev and Australian Fisheries Management Authority (1995) 21 AAR 305 Skoljarev v Australian Fisheries Management Authority, (1996) 22 AAR 331 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Re Zalups and Australian Fisheries Management Authority [2003] AATA 908 Nikac and Others v Minister for Immigration and Ethnic Affairs (1998) 20 FCR 65 Re Skoljarev and Australian Fisheries Management Authority (1995) 21 AAR 306 Government Employees’ Health Fund Ltd v Private Health Insurance Administration [2001] FCA 322 Hicks v Aboriginal and Torres Strait Islander Commission [2001] FCA 586 Kent v Wilson [2000] VSC 98, (24 March 2000)
REASONS FOR DECISION
1 The applicant applies to review a decision made by a delegate of the Australian Fisheries Management Authority ("AFMA") pursuant to s165(5) of the Fisheries Management Act 1991 ("the Act") The decision under review was made on 5 September 2001 and is found at T2 of the documents lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975.
2 The decision then made was to vary an earlier decision with respect to the allocation of quota of school and gummy shark which the applicant would be permitted to take from the Southern Shark Fishery ("SSF").
3 The applicant applied to review the latter decision upon the basis that he asserted that his circumstances were "exceptional" and a larger quota should have been allocated to him.
4 This application was heard simultaneously with two other applications. All three applications sought review of decisions of AFMA with respect to quota allocations in the SSF. Each applicant was separately represented by Counsel. Mr Reed appeared on behalf of AFMA in each application. Each review was concerned with where "exceptional circumstances" existed thereby permitting an increase in quota.
5 By way of background, the SSF has been the subject of a number of management initiatives from the 1980’s. AFMA recognised that shark species were vulnerable to "over fishing" and control methods needed to be introduced to conserve the species and to provide long term viability to the shark fishing industry.
6 Initially, controls upon shark catch were by way of "input controls" where restrictions were made upon the catch of licensed members of the SSF. In the late 1980’s and early 1990’s it became obvious that the "input controls" were not preventing over exploitation. A number of industry publications and policy statements were issued by AFMA recommending an altered approach to management of the SSF which involved the implementation of "output controls". This practice involved an annual review of the quantity of shark stock and the imposition upon members of the SSF of a catch level known as a "total allowable catch" ("TAC"). A TAC is then allocated to each individual member of the SSF.
7 Throughout the early 1990’s AFMA continued to be concerned about the viability of shark stock. A number of meetings were held in April 1997 by the Southern Shark Fishing Management Advisory Committee ("SharkMAC") which recommended that a system of individual transferable quotas ("ITQ’s") should be implemented into the SSF. At the same time consideration was given to a variation of the basis upon which quotas to members of the SSF would be allocated in future years. A press release was issued on 6 June 1997 advising that upon the recommendation of SharkMAC, catches recorded after 10 April 1997 would not be considered for inclusion into an ITQ as allocated to eligible SSF members.
8 Later, SharkMAC members and AFMA staff held a number of meetings throughout Victoria, Tasmania and South Australia to promote the objective of long term viability of the shark fishing industry and to obtain feedback from SSF members. The Southern Shark Allocation Advisory Panel ("the Panel") was established to provide advice with respect to the allocation of school and gummy shark quotas. After it consulted with shark fishers it recommended that ITQ’s of school and gummy shark in the SSF be allocated upon the basis of the fisher’s best three years of verified catch for the four year period between 1994 and 1997 inclusive. It was thought that this catch history period would "accurately reflect present relative economic positions of concession holders within the fishery". It was also thought that any distortions within this period by reason of altered catch, weather conditions, fishing performance and seasonal fluctuations would be minimised by preserving a "relative economic position" by a formula based on consideration of catch histories for the best three of the above four years (refer proof of evidence of Margot Sachse). A decision to not have regard to shark catch after 10 April 1997 was made to prevent fishers increasing their shark catch "in the hope of getting a larger allocation of quota in the future" (refer Media Release 6 June 1997, T15 p160).
9 The Panel ultimately published its report on 15 July 1999. At Chapter 7 the members of the Panel acknowledged that one of their terms of reference was to "identify and include" (for the purposes of the system of allocation of quotas) "any exceptional circumstances which the Panel considers should be taken into account including consideration of any inequity arising from previous allocations of fishing entitlements" (T19 p206). The panel considered inequities within the Commonwealth Gill Net Sector and the Commonwealth Hook Sector but with respect to the SSF it noted that the imposition of an ITQ to fishers within the SSF would be by way of condition upon a licence permit issued under s32 of the Act. Any decision as to the imposition of conditions would be reviewable by AFMA under s165 of the Act and ultimately by the Administrative Appeals Tribunal.
10 The Panel acknowledged that there may be circumstances particular to some fishers which could be regarded as being "exceptional" and an evaluation of those circumstances might be considered over a period of years outside the period 1994 to 1997.
MICHAEL ANTHONY BELL
11 Mr Bell adopted, as his evidence a proof of evidence made by him on 19 August 2002 (Exhibit 2). His proof of evidence is reproduced as under:
1. I was born on 4 December 1953 and am presently 48 years of age.
2. I commenced fishing professionally in January 1980 as a diversified fisherman, which included shark.
3. I commenced fishing as aforesaid from a 14 ft aluminium Clark dinghy named "Miss Vicki" with one- (1) shark net 600 metres in length.
4. In 1987 I upgraded vessels from "Miss Vicki" to a 17 ft aluminium dingy [sic] named the "Scrounger". I paid $3,500.00 for the hull and spend [sic] a further $10,000.00 for the up-grade and safety equipment. At the time I continued to fish for scale fish and shark
5. In 1998 [sic] because of my commitment to the fishing industry I decided to further up-grade my fishing vessel.
6. I decided to build a 32 ft steel hull multi-purpose fishing vessel named the "Big Scrounger". This was financed by: -
a) ANZ Bank 16/12/88 approved a loan of $60,000.00 for construction. b) The balance coming from: - i) Sale of "Scrounger" and licence (1 out of the 2) ii) J.R. Brown – Investors iii) S.R. Nail iv) Stingray Sea Foods v) Sale of personal assets vi) Savings
7. I spent approximately $150,000.00 to build the "Big Scrounger" which was launched in June 1992.
8. On 26 April 1994 the ANZ bank as a secured creditor repossessed the "Big Scrounger", re bank testimony T50 page P341, "inability to meet repayments" and sold it for $15,000.00, a pittance of its true value.
9. Due to the size of my financial commitment I was unable to keep up my repayments and on 25 August 1994 I was declared bankrupt.
(I attach an annexure ‘A’ a file coup [sic] of ITSA’s report to Creditors which lists creditors totally [sic] $147,175.82).
10. As a bankrupt I was prohibited from borrowing more than $3,000.00 unless I informed the lender that I was an undischarged bankrupt.
11. Notwithstanding the legal prohibition the fact is I was unable to borrow any money at all as no one would lend to me.
12. I recall speaking with the Commonwealth Bank about a loan. The bank’s response, after reviewing the Taxation Department’s assessment for:
was "not a chance, as you could never meet repayments and you have no security".
13. As I had exhausted all avenues of obtaining a loan(s) from family and friends and in view of the Commonwealth Bank’s decline I firmly believed, and remain of that belief, that I could not borrow at all, let alone sufficient funds to purchase another vessel, even a small vessel.
14. In an endeavour to get me back fishing my parents assisted me with the purchase of a $4,500.00 14ft Midnight Marine aluminium dinghy, which I named the "Little Scrounger". On 8 July 1996 I was able to recommence commercial fishing on a limited basis.
This action was notified to and approved by ITSA.
15. Because of the size of the "Little Scrounger" I was:
i) Only able to use (1) of the (3) shark nets for which my Shark Gill Net Licence was endorsed; and ii) Restricted to fishing in sheltered waters.
16. I was discharged from my bankruptcy on 26 August 1997.
17. When fishing from the "Little Scrounger", as I had to pull the net by hand in often rough and awkward conditions, I developed a hernia. This was first diagnosed on 1 November 1997.
18. Not withstanding my
hernia I continued to fish. I really had no financial choice but to do this
because of (refer to point 19 / N.B. Conditions of Loan re "Kingfisher").
19. Whilst fishing from the
"Little
Scrounger" I realised that if I were to maintain my commitment and
survive commercially as a fisherman then the "Little Scrounger" was
inadequate. To enable me to maximise my full fishing entitlements, I therefore
purchased a 26ft fibreglass vessel named "Kingfisher" for
$9,000.00.
a) Deposit M. Bell $2,500.00 b) Vendor finance - $1,500.00 c) Bennetto’s Finance $5000.00’
(N.B. Bennetto’s interest rate was 20.6%, as well as requiring, Bill of Sale on "Kingfisher", "Little Scrounger" and fishing licence).
The condition of "Kingfisher" upon purchase did not meet Navigation and Survey requirements for commercial fishing activities. To bring the "Kingfisher" up to standard required me to undertake extensive work and modifications, which I endeavoured to do whilst still fishing from the "Little Scrounger". These repairs and modifications took me until 1 March 1998 when the "Kingfisher" was relaunched for fishing, which was restricted to the Port of Hobart (Storm Bay) until further improvements to obtain a 3 X 30 NM Certificate, Nav. And Survey 14 February 2000.
My fishing activities were severely curtailed by the:
1. Fishing Regulations; and 2. Bankruptcy Act
And in this regard I submit that the circumstances amount to "special circumstances".
12 In evidence Mr Bell said that he purchased the vessel "Kingfisher" in 1997. The vessel "Little Scrounger" was used until January 1998 at which time he commenced fishing with "Kingfisher".
13 In cross-examination Mr Bell said that he purchased "Kingfisher" in either November or December 1997. Between 1994 and 1997 he was fishing in Storm Bay and in waters close to Hobart but for a considerable period during that time he was an undischarged bankrupt. He fished with "Kingfisher" in these waters until 2001 when, because of improvements to the boat, a survey certificate permitted him to fish in other waters.
14 In re-examination Mr Bell said that at all relevant times he had been allocated an entitlement to use three 600 metre nets but having regard to the size of "Little Scrounger" he was able to use one net only. He said that if he had possessed "Kingfisher" in the period 1994 to 1997 or had been able to use the vessel that was repossessed by the ANZ Bank he would have been able to use the three nets allocated to him which would have resulted in a bigger shark catch in those years.
15 Additionally, he said that regulations issued by the Tasmanian Fisheries Authorities prohibited him from using his shark licence on any vessel that he may have leased.
REVIEWABLE DECISION
16 In the reviewable decision made on 5 September 2001, Ms Stone, an AFMA delegate, decided that the policy (the management plan of the SSF) had been correctly applied with respect to the allocation of quota to Mr Bell. Nonetheless she decided that there were "cogent reasons or special circumstances that would cause me to depart from the policy in your case" (T2 p8). She decided that those reasons encompassed the repossession of his boat, the use of lesser nets and his illness.
17 Ms Stone decided that she should apply the policy and be mindful of recognising the relative economic position of fishermen in comparing catch with the catch of others. She acknowledged that the "personal vicissitudes" of fishermen could affect aggregate catch which might distort the relative economic position. She also acknowledged that the policy adopted the use of the best three years out of the four year period between 1994 and 1997 when allocating quota.
18 Nonetheless she was of the view that whilst the applicant’s illness was not a "special circumstance" the repossession of his boat was a "special circumstance" and she decided to alter the years that would be used to determine catch history being the financial years ending 1994, 1997, 1998 and 1999.
19 It was noted that initial decision over which Mr Bell sought review was to impose a quota of 664kgs of gummy shark and 2kgs of school shark. That was altered later to impose a quota of 757kgs of gummy shark and 2kgs of school shark. Ms Stone decided to increase the quota to 2085kgs of gummy shark and 6kgs of school shark. She noted that this amounted to an increase from the previous allocation for the 2001 year of 1302kgs.
20 The applicant applies to review that decision. MARGOT SACHSE
21 Ms Sachse is presently the Project Manager of the Southern and Eastern Scale Fish and Shark Fishery ("SESFSF"). She has previously held a number of management positions within AFMA and has a long history in the fishing industry. She lodged a proof of evidence which summarises the history of the development of the SSF, the introduction of ITQ’s and TAC’s, the assessment processes by AFMA from time to time, the consultation with industry and governments, and the process of verification of catch.
22 The proof of evidence also contained specific reference to the application brought by Mr Bell and it is found at paragraphs 49 to 69 which is reproduced as follows:
The Applicant’s Case
50. AFMA management contends that:
- The applicant’s financial situation and ill health do not constitute exceptional circumstances. - The internal review delegate’s decision of 5 September 2001 (T2) has resulted in an over-generous allocation of gummy shark quota to the applicant. - The generous treatment of Mr Bell’s internal review appeal has been at the expense of other SSF operators whose quota allocations became a smaller portion of the available TAC. This situation should not be compounded by the Applicant receiving further compensation at the expense of other SSF operators.
51. In April 1994 the ANZ bank due to Mr Bell’s inability to meet loan repayments repossessed the applicant’s vessel "Big Scrounger". In August of this same year the applicant was declared bankrupt.
52. Due to his bankruptcy status, Mr Bell was unable to obtain finance and therefore unable to purchase a vessel suitable for the purpose of fully utilising his 3 Gillnet Shark Licence. With his parents assistance Mr Bell was subsequently able to purchase a small vessel "Little Scrounger" which he operated from July 8 1996 using one gillnet in sheltered waters.
The case for the respondent
55. In recommending that quota be allocated using the best three of four years catch history formula, it was the intention of the AAP that the risk of distortion of an individual’s relative economic position be minimised. This was designed to account for periods when circumstances, such as illness, prevented a person from fishing.
23 In evidence Ms Sachse explained that AFMA had decided to introduce a process of "Units" with respect to the ITQ set in the SSF. This part of the evidence became relevant because of queries raised earlier in the hearing where the notification of quota entitlement issued to Mr Bell (for example T58 p364) records the Units of catch allocated to him whereas separately (for example T58 p363) there is an allocation of quota. Ms Sachse explained that a "Unit" is a proportion of the TAC that is allocated to each fisher. She said that when a TAC in the SSF is either increased or decreased in each fishing season, the proportion of quota allocated to a fisher remains the same by a corresponding kilogram value. She said that the weight of shark is set against "truncked" weight, being a shark which is beheaded and gutted but with its fins intact. This process she said ensures that fishers receive the same proportion of a TAC from year to year.
24 With respect to the current stock of school shark, she said that it is currently over fished and in recent years the "harvest strategy" of AFMA is to decrease the allocated quota for the catch of school shark. She said the reduction in quota will hope to ensure that by 2011 the stock of shark will be at the same level as it was at 1996.
25 Ms Sachse said that the stock of gummy shark is currently at sustainable levels although it was decided in 2002 by AFMA to reduce the quota of gummy shark by about 23 per cent.
26 With respect to satisfying AFMA of a catch history (so as to permit allocation of quota) Ms Sachse said that entry into a fishery (and the consequent allocation of quota) was initially established from records in a fisher’s log book. Later when fisheries were expanded, the allocation of quota to a fisher was on the basis of a verified catch history which was established by secondary documents mainly being the production of dockets from fish processors and other sources.
27 In cross-examination Ms Sachse disagreed with the proposition put to her by Mr Boland that shark licences were not issued for fishing in Tasmanian waters prior to 1990 because there was "open slather". Nonetheless it was not in dispute that in 1990 a licensing system was introduced where fishers were required to demonstrate a commitment to the shark fishery and subject to that demonstrated commitment, licences were issued with conditions attached concerning the use of one, two or three nets.
28 Ms Sachse was then asked to assume that at 1990 Mr Bell had been allocated a three net licence by Tasmanian fishing authorities. On the basis that this would indicate a demonstrated commitment to shark fishing she was then asked to compare his subsequent catch history. She was asked whether she would be prepared to acknowledge that had the applicant consistently used three nets subsequent to 1990 that he would have achieved a greater catch history (because for most of that time he had used a single net only). As a general proposition Ms Sachse was prepared to acknowledge that three nets would achieve a greater catch than one net, although she did note that for most of the years in issue Mr Bell fished in Tasmanian waters only, where stocks of shark were less than they would have been three nautical miles beyond the Tasmanian shore line.
29 Ms Sachse was also asked to acknowledge that the applicant’s catch for the year 1999 to 2000 of 4832kgs of shark (refer T48 p336) indicated that he was an "active fisherman". She was prepared to acknowledge the applicant’s commitment but she also noted that in the year 2000 the applicant had commenced fishing from a larger boat.
30 Ms Sachse was then asked a number of questions concerning the decision-making process, evident from the review decision completed by Ms Stone. Those questions in the circumstances were not appropriate because whilst Ms Sachse is the Manager of the fishery, Ms Stone is required to operate independently and exercise a discretion consistent with AFMA policy. Ultimately it is a matter for us to determine whether the decision under review in these proceedings was the correct or preferable decision.
SUBMISSIONS
31 Subsequent to the conclusion of the hearing, the representatives in each of the three applications simultaneously heard under review, lodged written submissions. Mr Reed on behalf of AFMA in all three applications lodged submissions which applied generally and concluded by written submissions which applied specifically to each of the three applications.
32 Generally it was submitted that the Tribunal should have regard to s6 of the Fisheries Administration Act 1991 ("the Administration Act") with respect to the functions and objectives of AFMA and should have regard also to s3 of the Act with respect to the functions and objectives of AFMA. To the extent that the expression "economic efficiency" is referred to in both sections of the foregoing legislation, it was submitted (by reference to Bannister Quest Pty Ltd v Australian Fisheries Management Authority Federal Court, 14 August 1997, 819/1997)) that this concept should be interpreted as an "increase in the aggregate profitability of the whole body of operators in a particular fishery that is, maximising total profit. Relative efficiency of individual operators and social and equity impacts have been held to have been extraneous to maximising economic efficiency". Additionally it was submitted that any variation in the allocation of quota to a fisher will have an affect on other members of the SSF and those consequences should be taken into account.
33 Whilst it was submitted that there was no direct challenge by either applicant to AFMA policies, it was submitted that there were relevant policies which should be considered with respect to the allocation of quota, namely, the report of 15 July 1999 with respect to the apportionment and allocation of school and gummy shark (T19), the report of the Independent Allocation Review Panel of the SSF of October 2003, the report entitled "Allocation of Fishing Concessions Where Management Arrangements Change" (FMP 8) issued in September 1997 (T17) and the Catch Verification Policy of AFMA found at T24.
34 It was submitted that in all applications before the Tribunal neither applicant had established any cogent reason to warrant any departure from the above policies and in the interests of consistent decision making, the policies should be applied.
35 The quota allocation policy of 15 July 1999 was submitted as not offending the relative economic position of a fisher when the best three of four years between 1994 and 1997 are considered. It was submitted that such a period would take account of "personal vicissitudes" and the risk of distortion in catch history would be lessened.
36 The Independent Allocation Review Panel report of October 2003 was advanced in support of AFMA’s case because it was submitted that the economic position of fishers in the Commonwealth sector of the SSF had a permit which attracted a value based on entitlement to fish which in turn was based on catch history.
37 FMP8 was advanced because it was submitted that this policy honoured adherence to applicable legislation in the event of management changes in a Fishery and the minimisation of differential economic impact upon allocation of quota. That stated, it was conceded, that "it may not be possible to design an allocation system with absolutely no impact on the relative economic position of individual operators".
38 The Catch Verification Policy of AFMA extends to inspection of both primary and secondary documents. It is the policy of AFMA that log books alone are not appropriate to establish catch history and a number of examples were recited in the written submissions, based on the practices of other fishers, suggesting that log books – in the absence of other documentation – were unreliable as sources of information and did not always reflect the true extent of catch.
39 The expression "exceptional circumstances" was the subject of submissions by Mr Reed. It was submitted that AFMA does not have an "exceptional circumstances" policy and does not define the phrase in its policy documents. It was submitted that this expression has been used by fishers to argue against the application of policy and has a reference generically in some AFMA documents. It was acknowledged that it has been the subject of interpretation by the Tribunal in other decisions. Mr Reed drew attention to the use by AFMA officers of other expressions such as "special circumstances" and "cogent reasons" and submitted that on occasions the expressions "exceptional circumstances", "special circumstances" and "cogent reasons" have been used "interchangeably" in the application of the discretion available to decision makers when not applying policy. Mr Reed referred to the decision of Brennan J in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 and to the decision of the Tribunal in Re Skoljarev and Australian Fisheries Management Authority (1995) 21 AAR 305 and Skoljarev v Australian Fisheries Management Authority, (1996) 22 AAR 331. It was submitted that there has not been any consistent interpretation of either of those three expressions and a number of Tribunal decisions were recited. On balance it was submitted that the decision of Brennan J, in Drake, should be followed (as it was in Skoljarev).
40 Mr Reed submitted that "in addressing the question of cogent reasons, the correct questions in respect of an application before the Tribunal" were whether by the consideration of the best three catches between 1994 and 1997, any distortion to relative economic position was caused and whether the applicants’ circumstances amounts to "cogent reasons" or "special circumstances" for not strictly applying the quota allocation policy.
41 It was submitted that on the occasions where AFMA had found "cogent reasons" to depart from the allocation policy, it did so by substituting one or more years from the qualifying period set up by the Panel and those substituted years were chosen as close to the qualifying period as was possible, in order to accurately represent the applicant’s "relative economic position" between 1994 and 1997 and in order to minimise any differential impact between fishers resulting from substitution.
42 It was submitted that substitution of years in the 1970’s or 1980’s would be inappropriate because of the different state of the Fishery compared to the period 1994 to 1997 and the decline in school shark stock. Additionally it was submitted that use of years after 1997 was inappropriate because warnings had previously been given to fishers of changed policy. It was submitted that none of the applicants before the Tribunal has established any "cogent reasons" to cause a departure from the Catch Verification Policy and on that basis, the Catch Verification Policy should be applied in each case.
43 Specifically with respect to Mr Bell it was submitted that he had a limited catch history, he had been "generously dealt with by the review" and it was open to the Tribunal to determine that the quota allocated should be reduced. It was submitted that the applicant’s allocation is in excess of his "relative economic position" during the qualifying period and his application should fail because the absence of catch history is the result of personal decisions made by him, that when he fished for shark, he chose to remain in shore with limited gear, often within the Hobart region and he disregarded investment warnings with respect to increasing boat size or fishing gear.
44 Mr Boland on behalf of Mr Bell made written submissions and contended that the AFMA Delegate had erred in the exercise of her discretion. Whilst acknowledging that the applicant upon reconsideration had been granted a greater quota, it was submitted that having found that the repossession "Big Scrounger" constituted an exceptional circumstance, it was then wrong not to find that the applicant’s bankruptcy constituted an exceptional circumstance. It was contended that bankruptcy prohibited the applicant from borrowing funds in excess of $3000 and in those circumstances he was unable to acquire another vessel.
45 Additionally it was submitted that imput controls imposed by the Tasmanian Fisheries (Shark Gill Net) Regulations 1990 prevented the applicant from attaching a Tasmanian Shark Gill Net Licence to a boat of which he was not the owner. In those circumstances the applicant was unable to use the three nets which were allocated to him as part of his Shark Gill Net Licence and had he been able to use three nets he would have had a greater catch history. Whilst it was acknowledged that the applicant eventually borrowed moneys from his family and purchased a 14 foot aluminium dinghy (the "Little Scrounger"), the size of the vessel permitted only the use of one net.
46 Mr Boland referred to the evidence of Ms Sachse and submitted that she acknowledged (in so far as the applicant was concerned) that the applicant had demonstrated to Tasmanian fishing authorities in 1990 that he had a commitment to fishing and he was therefore allocated three gill nets which would – in comparison to other fishers having a similar allocation – cause an expectation of a catch of six tonnes of shark in any given year. Additionally the Tasmanian fisheries authorities had at all time prior to January 2001 controlled the issue of licences to the applicant and the waters in which he could fish. Further Tasmanian State only fishers were not notified of the AFMA media release notifying of changes in the SSF until after June 1997 (which was submitted by Mr Boland as being unjust and inequitable) because despite the late notification of changes in the SSF, shark fishing is seasonal (generally between the months of October and May), that gummy shark has been a stable species for 22 years and fishing for gummy shark was the applicant’s preference.
47 Mr Boland submitted that no relevant distinction could be drawn between the words "exceptional circumstances", "special circumstances" or "cogent reasons". He submitted that those words meant the same, being "something unusual or atypical". He relied on a number of authorities and referred to the decision of Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 ("Re Drake") at 645.
48 Mr Boland relied extensively on the Tribunal decision in Re Zalups and Australian Fisheries Management Authority [2003] AATA 908 and further submitted that the policy of use of the best three of the four years between 1994 and 1997 (thereby deleting the worst of those four years) because of a fishers "personal vicissitudes" was wrong because an exceptional circumstance for a fisher is more than likely to occupy greater than a period of one year. Restated, Mr Boland submitted "any circumstance or combination of circumstances of less than one year’s duration is catered for in the usual case, that is the best three out of the four criteria years".
49 Mr Boland noted that the Panel deferred reporting as to what might constitute exceptional circumstances although it noted that entitlements in the Commonwealth Gill Net Sector of the Commonwealth Hook Sector between April 1988 and January 1994 may have caused inequities. It followed, according to the submissions, that in all other cases, whether or not the gear allocations could be brought into account when deciding exceptional circumstances, had been "left open".
50 Mr Boland referred to his client’s application and to a proposed formula submitted by Mr Bell in order to demonstrate his entitlement to increased quota. The factors submitted by Mr Bell that should be taken into account were the licence issued to him restricting fishing in Hobart waters only, "teething problems" associated with a new boat and gear, a broken motor in the 1993/1994 year, lack of finance, consequent inability to fish and later repossession of his boat. Based on the formulation and projections suggested by Mr Bell, he submitted that in the event his client had an operational boat and was using three nets, his expected catch (based on his returns in the 1999/2000 year) would be approximately 4800 tonnes. Mr Boland submitted that an alternative formula should be adopted by AFMA when considering increased quota based on the projected catch using three nets, as opposed to the projected catch using two nets in the period 1995 to 1998 upon figures published by the Tasmanian fishing authorities. It was submitted that those figures would permit a "multiplier" of 2.72 which, if applied to the actual catch of Mr Bell in the years ending 1998, 1999 and 2000, would permit a finding of the imputed or likely average catch per annum at 6208kgs.
51 In reply Mr Reed, on behalf of the respondent, submitted that the application did not involve a review of the decision made by Ms Stone nor was Ms Stone’s reasons the starting point for this review. It was submitted that the decision of the review officer was not relevant to our function and that we were obliged to make our own decision on the material before us.
52 With respect to the Tasmanian Fisheries Regulations, it was submitted that the impute controls were not an exceptional circumstance and the interpretation of the Regulations by Mr Boland were – as submitted – incorrect. It was submitted that the restrictions upon the Shark Gill Net Licence extended only to the use of those licences by the licence holder or an authorised skipper. It was submitted that there was no restriction prohibiting the licence holder to use the licence on a vessel not owned by him.
53 It was submitted that there were no exceptional circumstances with respect to Mr Bell and the catch scenario put forward by Mr Bell and Mr Boland should not be accepted. It was submitted that this scenario suggested that there were "ideal circumstances" whereas the actual catch history and the actual history of fishing should be considered in examining whether Mr Bell can demonstrate exceptional circumstances. It was submitted that the imputed catch referred to in the written submissions of Mr Boland could apply only to a "fully resourced experienced shark fisherman". It was submitted that Mr Bell was not such a person.
EXCEPTIONAL CIRCUMSTANCES
54 On 6 June 1997 AFMA issued a Media Release notifying operators in the SSF against increasing catches following a recommendation made at a SharkMAC meeting in April recommending in principal that a system of ITQs be implemented.
55 AFMA then decided to appoint the Panel to provide recommendations to AFMA concerning the apportionment of a TAC of school and gummy shark and a formula for the allocation of ITQs for school and gummy shark in the SSF. AFMA clearly recognised that any allocation system might expose operators in the SSF to inequity because (specifically) one of its recommendations to the Panel was to:
Identify and include in that allocation system any exceptional circumstances which the Panel considers should be taken into account including consideration of any inequity arising from previous allocations of fishing entitlements. (T-documents page 214)
56 The Panel consulted extensively and on 14 July 1999 issued the report of its findings. The Panel however decided "to defer a full report . . ." with respect to the exceptional circumstances that should be considered or taken into account in the system that it recommended. Whilst it found that allocations of quota in the Commonwealth Gill Net and Hook Sectors between April 1988 and January 1994 per se did not give rise to inequity or constitute exceptional circumstances, it did not determine whether entitlements in that period, in those sectors, offset by a system of weighting in favour of gear classifications against catch history would cause inequity (page 206).
57 The AFMA Board met in August 1999 to consider the report of the Panel and apparently in recognition that some applicants for an ITQ will be disappointed when quota is allocated under the recommended methodology of the Panel, the Minutes recorded:
It is likely that those operators with little catch history as a result of limited fishing or lack of legitimate receipts for their catches, will be most disappointed by the allocation method chosen. (page 233).
58 Although the Panel did not make recommendations as to what constituted an exceptional circumstance, AFMA clearly was prepared to consider such a phenomena in its policy of ITQ allocation because it notified fishers in September 1999 that catch history "to a large extent" affected by exceptional circumstances had been addressed by the recommendation that the best three of the four years between 1994 and 1997 would be taken into account in allocating quota. Nonetheless, in the letter to fishers of September 1999 (page 240 to 243), operators were advised that appeal rights existed against the quota as allocated.
59 An appeal against a decision of AFMA to this Tribunal must follow the procedures outlined in s165 of the Act. It provides that a person affected by a decision of AFMA must initially request reconsideration by an AFMA delegate. Any appeal to this Tribunal must be to seek a review of the reconsidered decision of the delegate.
60 This appeal proceeds only upon the basis that the applicant seeks a greater allocation of quota by reason of his asserted "exceptional circumstances". No review is sought against the particular policy of AFMA concerning the allocation of ITQs.
61 Throughout this review the AFMA delegate and the parties and their representatives, from time to time, have referred to the decision under review as requiring an examination into either the "exceptional circumstances" or "special circumstances" or "any cogent reasons" justifying departure from policy.
62 For our part we propose only to examine whether the applicant can demonstrate "exceptional circumstances" as that expression is found within the AFMA policy. Whatever might be understood or meant by that expression will in our view be confused if it is understood to mean "special circumstances" or "any cogent reasons". Those latter two expressions are not found in either the terms of reference of the Panel or in the deliberations of the Panel or in the acceptance of the AFMA Board of the Panel’s recommendations. It may or may not have different meanings. We do acknowledge that the expression "cogent reasons" appears to have its origin in Re Drake by Brennan J adopting that expression to explain the nature of circumstances that may justify departure from policy. Deputy President McMahon used the same expression in Re Skoljarev and Australian Fisheries Management Authority (1995) 21 AAR 306 ("Re Skoljarev") despite the policy then applicable using the expression "special or unique circumstances". Davies J similarly discussed this issue on appeal in Skoljarev at 339-340 and whilst he thought that "special or cogent reasons" might limit or restrict the circumstances that may justify departure from policy he decided on balance that the "correct principles" had been applied in the examination of the applicant’s circumstances. AFMA has indicated that it will depart from its policy if "exceptional circumstances" are demonstrated. As we now stand in its shoes, we will focus on that expression.
63 The expression "exceptional circumstances" is not defined by the legislation nor is it defined by AFMA within the ITQ policy. Assistance as to its meaning is therefore to be obtained from decisions of Courts or Tribunals in other applications or from dictionary meanings.
64 Hopefully the following decisions will indicate that there must be regard, on the one hand, between the subjectivity and context of the circumstances asserted by an individual as exceptional and the preservation of the objectives and intent of legislation and policy on the other hand.
65 In Nikac and Others v Minister for Immigration and Ethnic Affairs (1998) 20 FCR 65 Wilcox J heard an appeal under the Administrative Decisions (Judicial Review) Act 1977 concerning a decision made by the Minister for Immigration and Ethnic Affairs to deport a non-citizen. In his Honour’s review of the decision of the Minister regard was had to a Ministerial policy ("The Government’s Deportation Policy") that recommendations of the AAT should only be overturned by the Minister in exceptional circumstances and then only when strong evidence could be produced to justify the decision. In the review of the Minister’s decision, His Honour decided that it was not "devoid of plausible justification" and concluded that (paragraph 56):
the term "exceptional circumstances" postulates a criterion which is both vague and subjective. Every case is different, so that there are always some aspects of a case which may be regarded as exceptional. The question inevitably arises: exceptional compared with what? Even if it be conceded that there is nothing very exceptional about drug offences appearing upon a list of convictions, there will always be differences in the circumstances of those offences. For example, I would not myself have thought that the particular offences committed by Nikac were of such a nature as to constitute a reason for taking the unusual step of declining to accept the recommendation of the tribunal, by whom both the offences and all the other relevant circumstances were considered. But it is impossible to categorise a different view as being devoid of plausible justification. Like beauty, "exceptional circumstances" lies in the eye of the beholder.
66 The above decision and analysis of the concept of "exceptional circumstances" was examined by a Full Federal Court in Hicks v Aboriginal and Torres Strait Islander Commission [2001] FCA 586. The Full Court decided (paragraph 21):
We accept the correctness of the approach taken by Wilcox J in Nikac to the use in a legislative or quasi-legislative instrument of the notion of "exceptional circumstances" and consider that approach applicable to the principle.
67 In the context of the Commonwealth Health Insurance Policy, the concept of "exceptional circumstances" was examined in Government Employees’ Health Fund Ltd v Private Health Insurance Administration [2001] FCA 322. That appeal concerned decisions made by the Private Health Insurance Administration Council refusing an adjustment by way of a payment of re-insurance to a registered health insurer. The defined policy of the PHIAC was to make "adjustment payments" if a fund could demonstrate "exceptional circumstances". To that end the Council decided that in order to ascertain whether "exceptional circumstances" existed, a health fund "must demonstrate that its circumstances were different to those that applied to other organisations and that they were beyond the control of the organisation". In its review of that part of the policy the Full Court concluded (paragraph 43):
It may be accepted that the Council was entitled to adopt a policy that reflects the concerns apparently underlying rules 4 and 5. It was reasonable for the Council to take account of difficulties that might be caused to other organisations with respect to delayed adjustments, and to weigh the part the organisation requesting the re-calculation played in contributing to the error. A policy which reflected those concerns, and was informative of the standards and values which ought usually be applied in deciding whether to permit further adjustments, would not be unlawful since it would not seek to control the decision-making: see Drake at 641. It is, however, another matter for a statutory decision-maker to adopt a policy which excludes from consideration, as "exceptional circumstances", all circumstances that do not reflect these concerns. The process undertaken by the Council in this case involved substitution of different and narrower criteria for the criterion specified in rule 5.
68 The Court ultimately concluded that in applying a "rigid policy" the PHIAC had erred because it "caused its discretion to miscarry".
69 In the decision of Kent v Wilson [2000] VSC 98, (24 March 2000) a decision of Hedigan J in the Supreme Court of Victoria, his Honour heard an appeal under the Victorian Sentencing Act 1991 as to whether a prisoner should be released from custody to serve the balance of sentence in the community. We readily acknowledge that the criminal law would require different considerations to the civil law – particularly the Fisheries Management Act – nonetheless his Honour was critical of a Magistrate who found that "exceptional circumstances" were circumstances that were "not typical". His Honour concluded (paragraph 24):
The magistrate's dictionary definition remains shrouded in mystery, if not doubt. My resort to the Shorter Oxford Dictionary and the Macquarie fails to find "not typical" (the key part of the magistrate's construction of "exceptional circumstances") as finding a place in the definition of exceptions. By and large "exceptional" is defined as being "unusual, or an unusual instance or extraordinary".
70 His Honour quoted part of a decision previously delivered by him where he was also required to examine the concept of "exceptional circumstances" (refer Owens v Stevens an unreported decision of 3 May 1991). His Honour then decided (paragraph 22):
On that occasion I stated,
"The use of the phrase 'exceptional circumstance' is not unknown in the legal lexicon. Section 13 of the Bail Act is a well-known example.
Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning 'unusual, special, out of the ordinary course'. This does mean any variation from the norm.
71 In a review of a decision allocating quota, the objectives of a policy must be considered. Any finding of "exceptional circumstances" which may result in an increase of quota may offend the statutory and policy objectives. This issue however must also be considered with a need for justice to an individual (refer Davies J in Skoljarev). In Re Drake, Brennan J decided that "if it were shown that the application on ministerial policy would work an injustice in a particular case, a cogent reason would be shown, for consistency is not preferable to justice".
72 In Re Drake His Honour decided at (page 645):
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
CONCLUSION AND REASONS FOR DECISION
73 In the present application Mr Bell seeks to have a greater allocation to him of shark quota upon circumstances that he asserts are exceptional.
74 His circumstances must be "exceptional" in order to permit a finding that AFMA should not adopt his best three catches in the four year period between 1994 and 1997. Necessarily the policy objectives will be considered as indeed will be the objectives found at s3 of the Act.
75 The Panel reported (T-documents, page 205), by its recommendation that the best three of a four year period be considered in the allocation of ITQs (because) "the personal vicissitudes of a fisherman’s life such as injury or other illness, loss of, or serious damage to gear or vessel, occurring during so short a period as four years are likely to affect his aggregate catch during the period to an extent that distorts his relative economic position. By using the best three years of the period the risk of such distortion is lessened, in our view."
76 In the present application Mr Bell fished prior to 1987 from the 14 foot boat "Miss Vicki". In 1987 he acquired the "Scrounger" being a 17 foot boat. In 1988 he commenced building a 32 foot boat being the "Big Scrounger". Considerable moneys were borrowed and the total cost of purchase and refitting was $150,000. That vessel was launched in June 1992. In the 1994 year the motor on the "Big Scrounger" became incapacitated and the applicant said that he was unable to fish for five months. Consequently he did not earn income and he was unable to repay bank loans. The vessel was repossessed in April 1994 and in August 1994 he was declared bankrupt. With the assistance of his parents, the applicant acquired a 14 foot boat, "Little Scrounger" in July 1996 and thereafter fished with one net. In November 1997 he was diagnosed with a hernia which was repaired in May 1998. In March 1998 the applicant launched another vessel "Kingfisher" and fished in Tasmanian waters until February 2000 but from that date he has been permitted to fish beyond Tasmanian limits.
77 We accept, and find as a fact, that the applicant does have a commitment to fishing and notably, his preference has been to fish for gummy shark being a species, upon the evidence heard in these proceedings, that is not at the same risk of becoming as extinct as school shark. We a | |||||||||||||