Donohue v Australian Fisheries Management Authority

Background 6 SBT is a very valuable and highly migratory species of pelagic fish. SBT has a broad distribution across the oceans of the Southern Hemisphere. As a long-lived species (up to 40 years) with a lengthy pre-maturity period and virtually life long exposure to fishing pressure, the stock is slow to recover from depletion relative to other shorter-lived species, including most other species of tuna. As part of an annual cycle, SBT move south along the West Australian coastline and then eastwards, appearing in the Great Australian Bight from December. A rapidly increasing portion of the Australian catch has been taken by tuna farmers operating from Port Lincoln who take fish for the purpose of fattening them in fish farms. In the 1998-99 season more than 95 per cent of SBT taken in the AFZ was utilised in this way. Tuna continue up the east coast of Australia where they are present from May to September. 7 By 1980 estimates of the parental stock of SBT had declined to 25 to 35 per cent of its 1960 level and it was becoming clear that SBT had been severely overfished. In response to this decline, Australia, Japan and New Zealand engaged in informal international management. Then in 1993 those countries entered into the Convention for the Conservation of Southern Bluefin Tuna (the SBT Convention) and established the Commission for the Conservation of Southern Bluefin Tuna (the Commission). The objective of the Commission is to restore the parental stock of SBT to its 1980 level by the year 2020. Nevertheless SBT parental stock has continued to decline. In 1997 it was estimated to be at historically low levels, in the order of 7 to 15 per cent of the 1960 level. This is below commonly accepted thresholds for biologically safe parental biomass. Below these thresholds the risk of recruitment failure greatly increases. Further pressure has emerged from some twenty other countries who are not members of the Commission. 8 The SBT Management Plan introduced Statutory Fishing Rights (SFRs) and provides for an annual total allowable catch (TAC), currently fixed at 5,265 tonnes being Australia's allocation of the global TAC on SBT decided on by the Commission. Each SFR has an annual kilogram value which varies depending on the TAC. At present the kilogram value for each SFR is 0.98883 kg. 9 The ETBF targets a number of species in the area up Australia's entire eastern seaboard out to the limit of the AFZ. The principal catch are yellowfin, bigeye and albacore tuna and broadbill swordfish. Because longline fishing gear (up to 100 km) may traverse areas of hot and cold water within a single set, gear targeted towards other species may often catch SBT as a by-catch. ETBF operators also must hold SBT SFRs under the SBT Management Plan to take SBT. The SBT Management Plan provides an open market mechanism for acquiring the necessary SFRs to cover catches of SBT. 10 From 1998 Australia and New Zealand have been in dispute with Japan which has conducted an "experimental" fishing program under which it took an additional 1,464 tonnes of SBT on top of its national catch allocation in 1998 and an additional 2,198 tonnes in 1999. Australia and New Zealand brought proceedings before the International Tribunal on the Law of the Sea and successfully argued for an order directing Japan to cease this practice. The Japanese action occurred against a background of significant increases in catches by non-Convention countries. Australia was concerned that the Japanese unilateral increase might encourage other countries to increase their catches. Given the stance Australia has taken in this dispute, AFMA takes the view that its domestic management must be rigorous and thorough. Any evidence that Australia has exceeded its own TAC might well be used against her in future disputes and litigation. 11 The potential for Australia to exceed its TAC has become increasingly greater since the Port Lincoln owners of SFR for SBT have increased the size of their tuna farming operations. Until recently Port Lincoln operators did not use all their SFRs and there was thus a pool of unused quota at a relatively cheap price which many ETBF fishers used to cover any SBT (target or by-catch) they caught. But with the increase of Port Lincoln based demand for SFRs, ETBF operators have had to pay higher prices. If SBT is caught at sea and the fisher does not have available SFR the likelihood is that the fish (more likely than not dead) will be discarded. The more this occurs, the more likelihood there is that the TAC will be exceeded in fact, even though the take will not be recorded. Up until the time of the order, some ETBF fishers who took SBT as a by-catch would land the fish and then purchase or lease SFRs to cover the catch. Although a partial solution, this practice did have the problem that there was a tendency to discard SBT where the quality of the fish suggested that, having regard to the cost of SFRs and the price obtained, it would not be economical to land it. This "high grading" would have the effect of diminishing the overall quality of the SBT stock. 12 AFMA received reports of substantial discarding of SBT, including a press release by the Association itself on 29 June 1999 which stated, amongst other things: "The East Coast Tuna Fishermen of NSW who target yellowfin and bigeye tuna will waste over $10 million of export SBT this season. Over the past 5 weeks tonnes of SBT, some with a potential value of over $20,000 [sic] a fish, have been dumped at sea." 13 This release was part of a campaign by the Association to get free SFRs for SBT, a proposal rejected by AFMA because of the detrimental effect on the value of existing SFRs. 14 In the latter part of 1999 extensive discussions took place between AFMA, the Minister for Fisheries and Forestry and Association members about these issues. Mr Meere deposed as follows: "120. AFMA Management and the Board discussed, over time, what options might be available to us. For instance, we considered at one time the purchase of New Zealand quota which could then be onsold to ETBF longline operators, but this was dismissed as not feasible. My focus, and that of AFMA management and the Board was, however, always on encouraging ETBF operators to participate in the SBT market and to buy or lease quota. Gradually over time the focus shifted so that whilst our preference was still that ETBF operators purchased the quota, we began to consider how we might seek to restrain the ETBF operators activities to minimise the potential for discarding in excess of the TAC. 121. It was never simply a matter of saying that we needed to enforce the arrangements under the SBT Management Plan. The matter was, and is, more complex than that. The window for an operator to commit an offence is very small, as it does not take long to cut a dead SBT off the line: a matter of minutes at most. Short of having a fisheries officer on every boat it is almost impossible to police. The s 43 Temporary Order idea started to develop following the December Board meeting when AFMA Management had to prepare options to put to (the Commission)."

AFMA Board Meeting 11 May 2000 15 The critical decision was taken at this Board meeting. Those present included Mr Meere. Mr Meere reported amongst other things: "The SBT migration up the east coast of Australia runs from May through September during which time ETBF operators take SBT as an incidental catch while fishing for other tuna species. In the last two years, a large number of ETBF operators have failed to retain or acquire SBT quota and, with the increasing catch taken under quota for the farm sector, ETBF operators will now potentially take SBT which cannot be covered by quota and Australia's national TAC will be exceeded." 16 The Board noted, amongst other things, that failure to take immediate action would be a serious breach of international obligations and would put at risk the international management of SBT. This was all the more serious given the Australian and New Zealand action against Japan in the International Tribunal on the Law of the Sea. The Board agreed that a key strategy was to minimise the risk of over quota catch of SBT on the east coast. The focus must be on prevention rather than prosecution. A number of options were considered: (i) Directions under the SBT Management Plan. This option was found to be ineffective since it could only be applied to SFR holders under the Management Plan and over quota catch is by ETBF operators with no SFR holdings. (ii) Enforcement through an increase of on-water fisheries officers present via patrol vessels. The costs for a single patrol vessel are high, the fleet of fishing vessels is disbursed over a wide area and there is a very small time window when lines would be hauled and offences potentially committed. This option would be ineffective as well as prohibitive on cost grounds. (iii) Enforcement through observer coverage. This option would require a large number of trained observers and such a workforce could not be made available without considerable notice. Additionally, many of the boats are not adequately equipped or surveyed to carry observers. Also it was not cost efficient. (iv) Onboard cameras. Trials of such technology were being conducted overseas but the untried nature, the time taken to install and test, coupled with problems of ongoing reliable operation in a hostile environment, made this infeasible. (v) Closures under ETBF permits. This option was not feasible since it was not legally possible to change the area of access under the permits after they had been issued. (vi) Enforcement action under ETBF permits. This action was not feasible as it would amount to taking SBTs without holding SFRs and would have to be dealt with under s 95 of the Act. (vii) The final option was that ETBF operators acquire a quota to cover SBT catches. This option was preferred, but it was noted many operators had not done so despite AFMA's encouragement. 17 Having evaluated all options the Board was of the view that the use of temporary orders restricting access by requiring the holding of SBT SFRs and other compliance measures was the only appropriate method for preventing a substantial over-quota catch of SBT on the east coast. As a consequence, on 31 May 2000 Mr Meere as delegate of AFMA under s 43(8) of the Act made the order. I should note that amongst the material before the AFMA Board and Mr Meere was legal advice which was against the validity of the course taken. This advice was produced after my ruling that legal professional privilege was not available: Telstra Corporation Limited v BT Australasia Pty Ltd (1998) 156 ALR 634 at 654 et seq. As will hereafter appear, I take the view that order was valid. AFMA and Mr Meere acted properly in seeking legal advice, but they were not legally obliged to follow it.

Discussion 18 I am satisfied the order was legislative in character rather than administrative. The order promulgated a general rule not directed to any particular persons, but to any person who might, during the specified period, intend to fish by a particular method in a specified area. It had the effect that anybody in the world who breached the order would commit an offence under s 95(1)(d) of the Act. Moreover, by s 43(9) the order was a disallowable instrument for the purposes of s 46A of the Acts Interpretation Act 1901 (Cth). Therefore any challenge meets a "much sterner onus" than judicial review of an administrative order: Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 37 FCR 463 at 477 per O'Loughlin J. 19 His Honour's decision was upheld by the Full Court: Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381. Lockhart J (at 382) quoted with approval a passage from the judgment of Diplock LJ in Mixnam's Properties Ltd v Chertsey Urban District Council [1964] 1 QB 214 at 237-238. In the course of that passage Diplock LJ said: "Thus, the kind of unreasonableness which invalidates a by-law is not the antonym of 'reasonableness' in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say: 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires';". 20 It is true that s 43(2) prescribes what might be loosely called conditions precedent. However, in considering whether those conditions have been met, AFMA or its delegate must be given substantially more latitude than would be the case in a challenge to an administrative decision. Even in the latter case, it is not sufficient that a court thinks the decision unreasonable, illogical or one for which a better solution could be found. With an order of a legislative character the challenge is even more circumscribed. Grounds for challenge to administrative decisions such as breach of natural justice, the taking into account of irrelevant considerations and the failure to take into account relevant considerations are not available: Austral, 37 FCR at 474. Moreover, the conditions are expressed not in terms of the existence of certain facts and circumstances, but in terms of AFMA's satisfaction as to such matters (see Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1996) 185 CLR 259 at 275-277). 21 In my opinion there was clearly material available to Mr Meere on which he could reach, and did reach, satisfaction as to the necessity for taking urgent action for purposes related to the management of the SBT fishery. The circumstances led to a conclusion that in the current year there was a real risk that the TAC for SBT might be exceeded. Those circumstances included: (i) the sharp decrease in reported catch of SBT by Association operators; (ii) the increasing use of SBT by Port Lincoln farmers; (iii) reports of large levels of discarding of SBT, including information published by the Association itself; (iv) industry reluctance, as expressed through the Association, to acquire SBT quota voluntarily, notwithstanding protracted negotiations and lobbying; (v) the impending start of the SBT season on the east coast from May to September; (vi) the need for Australia to maintain vigorous enforcement of domestic quotas so as not to weaken claims in international tribunals against Japan. 22 The action needed was urgent in the sense that it related to the 2000 season only. The Act itself strictly limits the duration of the order: ss 43(5),(6) and (7). The action contemplated was consistent with AFMA's objectives in s 3 of the Act. As already mentioned, Mr Meere considered other options and rejected them as not being appropriate for a variety of reasons. It is not to the point that others might take a different view as to the appropriateness of such options or suggest other options which Mr Meere did not consider. 23 The thinking behind the 500 kilogram quota was that it would tend to discourage discards because a fisher who took SBT as a by-catch, having paid for quota, would have an incentive to land and report the catch rather than discard it. Thus there was an increased likelihood that SBT take would be brought into the system. I do not have to decide whether this will in fact happen. It was well within the province of Mr Meere as delegate of AFMA to see this proposal as a rational way of lessening the risk of exceeding TAC, the circumstance for which urgent action was required. Likewise VMS could be rationally seen as part of a system for monitoring the order, given that AFMA would have records of boats including identification of those which did and did not have the requisite SBT quotas. 24 In my opinion therefore the order was a valid exercise of the power conferred by s 43(2). I do not accept the argument that Mr Meere did not form an independent state of satisfaction and therefore did not make the decision himself in his capacity as delegate. The reality is that he had participated in the AFMA Board meeting and the reasonable inference in the circumstances of this case is that he in fact held the same opinion and reached the same state of satisfaction as did the Board in relation to the proposed order. 25 The application will be dismissed. There will be an order that the applicants pay the respondents' costs, except for the costs of the hearing on 19 June 2000 when the matter had to be adjourned because the respondents had not complied with a direction as to the filing of affidavits. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Counsel for the Applicants J G Larkins QC and T Ginnane