Australian Fisheries Management Authority v Gilmore

REASONS FOR JUDGMENT 1 This is an appeal by the Australian Fisheries Management Authority ("the Authority") pursuant to s 161 of the Fisheries Management Act 1991 (Cth) ("FM Act"). The appeal by the Authority is from a decision of the Statutory Fishing Rights Allocation Review Panel ("the Panel"), which is a body established under s 124 of the FM Act. The right of appeal to this Court from a decision of the Panel is limited to an appeal on a question of law (s 161(1)). 2 There are 209 respondents to the Authority's appeal. The first respondent is Mr Trevor Ray Gilmore. He appeared by counsel and solicitors who provided their services pro bono after a referral under O 80 subrule 4(3) of the Federal Court Rules. The Court is grateful for the assistance which they provided. A judge of this Court made orders relating to the service of the notice of appeal and supporting affidavit (without exhibits). Twelve respondents were to be served personally and the rest of the second to 209th respondents were to be served by registered mail. Those orders were complied with by the Authority. The 135th respondent, Mr Patrick James Clark, appeared in person. He did not attend the hearing of the appeal, but he made short written submissions in support of an order that the appeal be dismissed. None of the other respondents appeared. 3 The right to take fish is a valuable right. The right and other rights defined in the FM Act are closely regulated by the FM Act and the subordinate legislation made under it. The FM Act defines a "fishing concession" as a statutory fishing right or a fishing permit or a foreign fishing licence (s 4). Each of those terms is defined in the FM Act. For the purposes of this case, I am only concerned with statutory fishing rights and fishing permits. The significance of a fishing concession is that it authorises activities which would otherwise be offences under s 95 of the FM Act. 4 The nature of a statutory fishing right is described in s 21 of the FM Act and the ways in which statutory fishing rights are granted is dealt with in ss 24-31 inclusive. The FM Act also uses the term, fishing right, and that term is defined as a statutory fishing right. The Authority must keep a Register of Statutory Fishing Rights (s 44). Statutory fishing rights have a permanence not accorded to fishing permits. 5 Fishing permits are dealt with in s 32 of the FM Act. They may be granted subject to conditions and those conditions may include a condition that limits the quantity of fish which may be taken (s 32(7)). 6 Fishing stocks are limited and from time to time the Authority fixes a total allowable catch for a particular species of fish in a particular fishery. A person's entitlement to take a particular quantity of fish may be expressed in units to accommodate the fact that the total allowable catch is likely to vary from year to year. 7 The Authority may make plans of management under the FM Act. They are legislative instruments under the FM Act (Lamason v Australian Fisheries Management Authority [2009] FCA 245 at [149]-[150] per Spender J). The process by which plans of management are made and the information or material they may contain are dealt with in ss 17-20 inclusive of the FM Act. A plan of management is relevant in this case and it is the Southern and Eastern Scalefish and Shark Fishery Management Plan 2003. The plan commenced on 1 October 2003 and it has been amended twice. I will refer to it as the Management Plan. 8 The FM Act deals with the granting of statutory fishing rights. There are a number of steps involved in the process. In a case where a grant of a statutory fishing right is not to be conferred by auction or tender, the FM Act provides that the relevant management plan will set out the procedures for determining the person to whom a grant is to be made available (s 29(3) of the FM Act). 9 There are a range of decisions the Authority is required to make under the FM Act. A number of them may be reviewed by the Administrative Appeals Tribunal ("the Tribunal") under the Administrative Appeals Tribunal Act 1975 (Cth). Section 165 of the FM Act grants rights of review from decisions of the Authority. The decisions which may be reviewed include a decision by the Authority under s 32 of the FM Act, that is to say, a decision to grant a fishing permit or a decision to impose a particular condition on a fishing permit. 10 There is a particular type of decision made by the Authority under the FM Act which may be reviewed by another administrative review body. The Panel is given the particular function of reviewing decisions mentioned in subsection 23(1) of the FM Act, being decisions made by the Authority (and another body which is not relevant for present purposes) as to the person or persons to whom the grant of a statutory fishing right in a managed fishery is to be made. A decision of that nature and involving the first respondent and a large number of other persons is relevant in this case. 11 For the calendar year 2006, the first respondent held a fishing permit under s 32 of the FM Act. The first respondent's permit was subject to a condition as to the quantity or quota of fish, being gummy shark and school shark, which may be taken. In June 2007, the Authority made a decision which had the effect of translating the first respondent's quota to statutory fishing rights. The decision also affected the entitlement of other fishers. The decision was made by the Authority by applying the formula contained in the Management Plan. 12 The first respondent sought review of the decision by the Panel. However, his complaint was not with respect to the formula; rather, he complained that the quota attached to his fishing permit for the calendar year 2006 and, indeed for previous years, was incorrect. He claimed that his quota should have been higher than the quota recorded on his fishing permit and therefore the translation of his entitlement to statutory fishing rights should have been higher. Subject to an error acknowledged by the Authority, the Authority denied that the first respondent was entitled to a higher quota than that recorded on his fishing permit for the 2006 calendar year. In any event, the Authority contended that, on a review of a decision mentioned in s 23(1) of the FM Act, it is not open to the first respondent to agitate a complaint about a condition attached to his fishing permit for the 2006 calendar year dealing with the quantity of shark he could take. 13 The Panel accepted the first respondent's arguments and substituted a different decision for that made by the Authority.