Plaintiff v First Defendant

Plaintiff v First Defendant - [2018] VSC 589 - VSC 2018 case summary — Zoe

[170]

CATCH LIMITS IN QUOTA FISHERIES

On the [plaintiff's] construction of the Act, a quota managed fishery cannot be subject to a catch limit. Regulation by catch limit is distinct from and inconsistent with management by quota. By contrast, the defendants contend that a fishery managed by quota may also be subject to a catch limit (at [54]-[64]).

The relevance of the argument is that should the [plaintiff] succeed in impugning the Revocation Decision, on its construction of the Fisheries Act, the Regulation would necessarily fail. By contrast, the defendants contend for the Regulation's validity even if the IQO remains on foot.

The [plaintiff] contends that the scheme of the Act is such that the two concepts are necessarily inconsistent. They are alternative means of regulating a fishery that do not and cannot sit side by side. The proposition emerges most directly from the text of ss 64(1) and 64A(1) and from the definition of "catch limit" in s 4.

The entirety of s 64(1) is devoted to matters concerning quotas: the ability to declare zones to be quota managed (s 64(1)(a)), the method for setting and allocating quotas (s 64(1)(b) and (c)), the transferability of quotas (s 64(1)(d)), the minimum and maximum quota units that an individual can hold (s 64(1)(e)) and the consequences of exceeding a quota (s 64(1)(f)). Similarly, s 64A(1) is directed to the periodic setting of quotas, including "the quantity of fish (by number, volume, weight or value)": s 64A(1)(b).

The comprehensive grant of powers in respect of quotas and their allocation then sits harmoniously with the plain words of the definition of "catch limit" which is expressed not to include "any limit relating to total allowable catch set under a quota order or to individual quotas or individual quota units": s 4. A quota limit is not a catch limit and a catch limit is not a quota limit. Moreover, the two concepts do not sit together.

Further, the comprehensive grant and regulation of powers in respect of quotas and their allocation in s 64 is such that, where an IQO had been made, that specific provision operates to the exclusion of the more general provision concerning the making of Regulations to specify a catch limit. As Gavan Duffy CJ and Dixon J said in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia:[69]

[184]

The principle is to be applied with caution: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 575. It is no more than a guide to ascertaining the intention of the legislature: Launceston CC v Taswater (No.2) 2015 LGERA 281 at 287 [11] (Pearce J).

In the Malaysian Declaration Case, French CJ stressed (at 177 [50]) that the Anthony Hordern principle, like expressum facit cessare tacitum, 'must be applied subject to the particular text, context and purpose of the statute to be construed'. The Malaysian Declaration Case dealt with a very specific statutory scheme under which the relevant statutory provisions had to be read harmoniously so as to give effect to Australia's international obligations of non refoulement. In that context, the central question was identified by Gummow, Hayne, Crennan and Bell JJ (at [84]) as whether the statute 'confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power'. Nothing can be derived from the fact that the principle from Anthony Hordern was found to apply in that particular statutory context. In particular, nothing said in the Malaysian Declaration Case detracts from the analysis of the Anthony Hordern principle previously set out in Nystrom.

It is clear from both Nystrom and the Malaysian Declaration Case that the principle is one of statutory construction, by which a determination is to be made as to whether or not a specific statutory power that is subject to prescribed restrictions is taken to exclude a more general power which may be exercised without those restrictions. It follows that there is no scope for any notion of "operational inconsistency" between the respective sources of power, by which one of the powers is only excluded only once the other power has been exercised, and still less is it possible to argue (as the Plaintiff seeks to do) that such operational inconsistency should depend on whichever of the two powers happens to have been exercised first. The Plaintiff cites no authority to support such a novel approach to statutory construction, by which the existence or availability of a statutory power would depend upon looking at what may be, from time to time, the consequences of that exercise of power.[71] In fact, Nystrom is directly against the concept of "operational inconsistency" advanced by the Plaintiff: see passages cited above, and see also at 584 [46] (Gummow and Hayne JJ).

The subject-matter of the power in s 64A(1) is a discretionary[72] power to set a total allowable catch for a specified period for a quota fishery (para (a)), and to determine the quantity of fish comprising an individual quota unit in a quota fishery in a specified period (para (b)). If a total allowable catch is set, and a determination of the quantity of fish comprising an individual quota unit is made (with the effect that a quantity of fish will also be able to be calculated for each individual quota), those values are not 'catch limits' as defined in s 4(1) of the Act. The effect is that other provisions of the Act which operate by reference to 'catch limits' ([eg], s 37(1)) do not treat the values set under s 64A(1)(b) (or the values calculated for each individual quota) as if they were 'catch limits'. The effect is also that the power in s 153(1) and (2) of the Act, read with Item 1.4 of Schedule 3, cannot be used to set a total allowable catch or the quantity of fish comprising an individual quota unit.

However, those effects say nothing about whether there is power under s 153 to impose a licence condition limiting the quantity of fish that may be caught by the holder of a licence in a particular class. Such a condition would be a 'catch limit', which is something substantively different from an individual quota (or any determination of the quantity of fish comprising an individual quota unit, etc.), and which would attract different consequences under different provisions of the Act.

The power in s 64A(1) is in aid of management of a fishery that is a quota fishery. There is a different power to make regulations prescribing conditions to which access licences (including by class) will be subject. That different power is s 153(1) and (2), which extends to providing for a condition on a class of licences by reason of, inter alia, subs 153(3)(a) and (b)(i). The power to impose licence conditions plainly extends to conditions that would limit the quantity of fish that might be caught under a licence (e.g. restrictions on minimum size, restrictions on the days or times on which fishing may be carried out, restrictions on equipment, etc.), and which might render it difficult for a licence holder to reach the allocated quota. Some such conditions would fall within the definition of 'catch limit' in s 4(1) of the Act - which encompasses, for example, limits 'on the quantity or type of fish that may be taken, possessed or controlled in any specified circumstances, regardless of ... whether the circumstances refer to how, when, where or by whom the taking, possessing or controlling occurs'. There is no "bright line" distinction under which a condition that limits the quantity of fish that may be taken should be deemed to be repugnant to management of a fishery by quota orders, but such other licence conditions could continue to apply.

There are no restrictions in the power to make a further quota order that necessitate confinement of the power to prescribe conditions on classes of licences. On the contrary, a consideration of s 64A(1) shows that an order may be made for any period whatsoever; it may be revoked or varied at any time; it may have a total allowable catch set at zero - all without attracting any right to payment of compensation. Far from being a power subject to restriction that is not to be avoided by recourse to a more general power, s 64A(1) plainly contemplates wide freedom as to its possible exercise.

The two powers (s 64A(1), read against existence of an order under s 64(1); and s 153) deal with different subject matters. On the one hand, management of a quota fishery and the creation and allocation of (transferable) quota entitlements; on the other hand, the imposition of conditions on licences or classes of licences. It is not to the point that the exercise of each of the powers may (but need not) result in a similar consequence or outcome in some respects - i.e. a limitation on the amount of fish that may be caught by a licence holder.

The fact that there can be two limits does not engage the principle in Anthony Hordern. The limits serve different purposes and operate in different ways. Nor is the principle engaged by the fact that there can be two sets of consequences in respect of breach of the two limits.[73] If there are two limits, the licence holder will need to comply with both. There are no 'conflicting commands which cannot both be obeyed'.

On the proper construction of the Act, irrespective of existence of an order under s 64(1), there is power to prescribe, by way of a condition on a class of licences, a limit on the quantity of fish that can be caught by the holder of a licence in that class.

[204]

This document builds on the 'Proposal to establish a commercial dive fishery in Port Phillip Bay' which was released for public comment in April 2013. Submissions on the proposal were collated and are being used to inform the establishment of the proposed fishery.

Section 1 of this document describes a set of baseline management arrangements, which have been developed to achieve compliance with relevant legislation and to meet fishery management objectives. These arrangements will apply to the proposed Commercial Scallop Dive Fishery at the commencement of fishing.

Existing knowledge of the scallop resource in Port Phillip Bay is limited. The baseline management arrangements are, therefore, conservative. Note that the term 'conservative' here equates to exercising additional caution in favour of conservation when information on stock status is absent or uncertain (Dowling et al. 2008).

There may be an opportunity for catch limits to be increased if this is supported by data collected by the licence holder. Section 2 of this document outlines the requirements for data collection, analysis and assessment for each stage of the fishery's development. For instance, from Level 1 (data-limited, no reliable information on current biomass or exploitation rate) when only mandatory, fishery-dependent data are collected, to Level 3 (highest quality data, robust quantitative assessment and least uncertainty regarding stock status) where the fishery is fully developed.

The [Department] acknowledges that the collection and interpretation of fishery information will incur costs. All such costs shall be borne by the licence holder. The licence holder will, therefore, decide if, when and how much to progress the fishery (as described in Section 2). There will be no requirement to develop the fishery beyond Level 1.

The Department makes no representation as to whether the fishery is capable of being further developed. For instance, while additional information may support less conservative management (i.e. a higher catch limit), it may also indicate that initial catch limits should be decreased to ensure the sustainability of the stock.

The proposed Commercial Scallop Dive Fishery will continue to be managed under the baseline management arrangements set out in this document until a draft 'Commercial Fishery Plan' is approved by the Department. The licence holder will be required to develop the Commercial Fishery Plan within 12 months from the commencement of fishing.

...

It is important to note that the economic viability of this fishery is unknown, and that the Department gives no guarantee about its profitability.

[212]

This multi-level approach to development allows a progressive 'learning from doing' situation so that data collection, analysis and assessment evolves from the simple towards something more complex as more data are strategically acquired and the fishery can afford the costs of additional information collection. Essentially there is a progression from low cost, low yield, at Level 1 to higher cost, optimum yield, at Level 3.

This approach allows for higher potential catches as more is known about a stock but it also allows the licence holder to make decisions about how much to invest in developing the fishery.

At any level, the licence holder will be responsible for the collection and analysis of the required data. The licence holder may choose to do components of this work themselves, if they have the capacity (i.e. conduct the survey), or engage others to do the work (i.e. analysis of the data).

There will be parts of the process for data collection, analysis and assessment that must be completed by person/s independent of the licence holder. For example, the Department will specify that an independent observer must oversee the survey and the Department will also require an audit of the data. The licence holder will be required to bear these costs as well as any other costs associated with the collection and analysis of fishery information.

As a result, there will be a trade-off between the conservative arrangements that are set in the face of uncertainty against the cost associated with gaining more information that may allow less conservative arrangements to be set.

Under any level, however, there can be no changes to the baseline management arrangements until a draft Commercial Fishery Plan is approved by the Department (see Section 1).

It is important to note that the licence holder will decide if, when and how much to progress the fishery. There is no requirement to develop the Fishery beyond Level 1.

The requirements for data collection, analysis and assessment for each level of the fishery's development are described in Appendix D.

The nature of scallop fisheries

As noted above, additional information may support less conservative management (i.e. a higher catch limit)). It may, equally, show that the initial catch limit should not be changed or, if there is evidence to suggest that the initial catch limit is unsustainable, decreased.

This is because scallop fisheries are characterised by naturally sporadic and fluctuating abundance and irregular, episodic recruitment. Scallops aggregate in sub-populations (scallop beds) which vary temporally in size and location. As a result, the amount of scallops that can be taken sustainably may vary considerably from year to year.

Process for decision making

The process for decision making is provided to show how the collection, analysis and assessment of fishery information can lead to change in the baseline management arrangements (i.e. catch limits).

[246]

Commercial scallop fishing using a steel dredge operated in Port Phillip Bay for 40 years up until the late 1990's. The fishery was closed by the Kennett Government due to community concern over the environmental impacts of towing a steel dredge across the floor of the Bay.
The fishery was boom and bust and believed by many recreational fishers to adversely impact the snapper fishery in the Bay.
Over the last 3 years there has been considerable concern expressed by the recreational fishing sector about the rapid growth of the Scallop Dive (Port Phillip Bay) Fishery. This follows more than a decade of no commercial scallop fishing in the Bay. (see example email -Attach 1)
The Scallop Dive (Port Phillip Bay) Fishery was established in 2013 under the former government as a small, high value 'niche' commercial fishery with an initial precautionary Total Allowable Commercial Catch (TACC) of 12 tonnes. The concepts of small scale, niche and boutique commercial fishery were strong themes in public communications at the time of establishment. This led to cautious support from the recreational sector and the broader public. The Baseline Management Arrangements (BMA) documentation provided prior to the public auction of the licence also reflected this theme of small scale and conservatism, but also provided for careful staged development of the fishery, conditional on the collection of specific data about the fishery to demonstrate sustainability.
The TACC for the 2017/18 fishing year is due to be set on 1 April 2017. The licence holder has met the data collection requirements for development and, despite only catching about 58 tonnes to date this fishing year, has recently applied to maintain his TACC at 250 tonnes for the 2017/18 fishing year.
A draft Management Plan for the fishery was prepared in 2016, and was used as a basis to set the TACC at 250 tonnes in 2016/17. The draft plan underwent public consultation and the approach to development was not supported by key recreational fishing bodies. VRFish stated that the plan was "at odds with the intent by which the fishery was initially proposed". FutureFish and other recreational fishers also strongly opposed the approach to development, requesting that the fishery not be allowed to become high volume and or limited to 50 tonnes (Refer to attached submissions). A number of submissions from the commercial sector were made in support of the draft plan.
Consistent with the draft plan, the 2016/17 TACC was set at 250 tonnes, but controls were put in place to limit the further expansion of the fishery, and provisions for a quota reduction if the full quota was not caught. If the apprach described in the draft plan was used to set the 2017/18 TACC, a TACC of 155 tonne could be set. The draft plan has not been formally declared, and therefore may provide limited guidance.
Recreational fishing bodies believe that the proposal to continue to operate the fishery as a 250 tonne fishery is inconsistent with the key messages given to stakeholders upon establishment of the fishery and that the growth of a large scale commercial fishery in Port Phillip Bay is inconsistent with current government policy to improve recreational fishing opportunities in Victoria. (Attachment 2)
The $27 million investment by Government to remove netting from the Bay demonstrates Government's commitment to making the Port Phillip Bay a prime recreational fishing destination. Given this, it is proposed that management arrangements for the fishery are amended to reflect this policy, and to give effect to the 'niche' intent of the establishment of the fishery. This includes setting a catch limit of 60 tonnes for the fishery by regulation amendment.
A 60 tonne fishery would provide for a sustainable niche fishery in the bay and recognise catch landed to date by licence holder. It would also provide fresh scallops to Victorians without impacting on recreational fishing and community interests.
The fishery is currently a quota managed fishery, established by the former Minister in 2013 by the issue of an Initial Quota Order. In order to set a catch limit in the Fisheries Regulations 2008 [sic], the Initial Quota Order would have to be revoked and the fishery would no longer be managed by quota.[129]

[284]

Under Section 8(1)(a) of the SL Act, you may exempt the proposed Regulations from the requirement to prepare a RIS if the proposed Regulations do not impose a significant economic or social burden on a sector of the public.
The Victorian Guide to Regulation provides that the indicative threshold for when a proposal is likely to impose a significant burden is when the impact is likely to be greater than $2 million per year. Where the impact is less than the indicative threshold, a RIS may still be required if there are concentrated effects on a particular group, region or industry.
FV has analysed the impacts of the proposed Regulations and is of the view that the estimated costs falls below the $2 million a year indicative threshold.
The analysis indicates that setting an annual catch limit of 60 tonnes for the Scallop Dive (Port Phillip Bay) Fishery will provide for an economically viable commercial fishery now and into the future. The total gross landed value of 60 tonnes is estimated at $900,000 - $1.2 million (based on a beach price of $15-$20 per kg).
The current Further Quota Order for the fishery expires on 31 March 2017. It is highly unlikely that the total allowable catch of 250 tonnes set under that Further Quota Order for the period 1 April 2016 to 31 March 2017 would be harvested. An annual catch limit of 60 tonnes exceeds the landed catch expected to be taken from the fishery for the 2016/17 year and the landed catch taken in previous years since the Scallop Dive (Port Phillip Bay) Fishery Access Licence was issued.
The proposed changes to commercial scallop fishing in Port Phillip Bay may have concentrated effects on the holder of the single Scallop Dive (Port Phillip Bay) Fishery Access Licence that has been issued and associated divers. However, the relative size of these impacts are considered insufficient to warrant preparation of a RIS. The proposed Regulations will not result in restriction on entry into or out of affected industries, nor will they alter the ability or incentives for business to compete in the industry or require significant additional funds or time to ensure compliance.
As the Order to revoke the Initial Quota Order is considered a legislative instrument under the SL Act, a RIS exemption, consultation certificate and human rights certificate have been prepared for this instrument. The proposed RIS exemption is on the basis that the Order, when considered alone, will reduce the regulatory burden for the holder of the Scallop Dive (Port Phillip Bay) Fishery Access Licence.

[291]

...

Background

Some of the history of this matter and the process for the setting of the TAC is set out in paragraphs 1 to 5 of the judgment of Rush J delivered on 1 May 2015: Port Phillip Scallops Pty v Minister for Agriculture [2015] VSC 179. In particular, his Honour confirmed that the Baseline Management Arrangements (the BMA) provide the basis for the operation of the fishery and establish that it is to be managed through a TAC administered by a quota management system.

Pursuant to this process, on 7 December 2016 Don Hamley of Port Phillip Scallops emailed Bill Lussier and James Andrews attaching the document entitled "Results of the fishery independent dive survey" prepared by the respected independent consultant Dr David Gwyther. Port Phillip Scallops then made an application for a TAC for the fishing year commencing 1 April 2017 by letter to you dated 20 December 2016. A TAC of 250 tonnes was requested in that letter. This occurred against the backdrop that the two previous TACs had been 146 tonnes and 250 tonnes.

In making this application we noted that the most recent biomass survey results demonstrated a continuing healthy scallop population in Port Phillip Bay. We also requested a meeting with you so that we could explain how the quota could be fully utilised. That meeting did not occur.

2016-2017 fishing year

In our submission, past tonnages taken, and the prospect of a given quota tonnage being utilised, are irrelevant to the setting of the TAC. If you have a different view, please advise us of your view.

Notwithstanding that submission, we make the following points in short form in relation to the 2016-2017 fishing year. As is common when trying to develop a new business, we have encountered some difficulties in our first couple of years. Once consequence is that last year we took fewer scallops than the maximum permitted under our quota. A significant reason for our comparatively low catch was that we only obtained export approval in December 2015, which is a matter beyond our control. After that date we worked on the export of scallops, especially into China, with our processor. However, transporting live scallops is a particularly complex task, which requires significant infrastructure at both ends of the transaction, not just ours. We have been working methodically through these processes. The refusal by the Government to gazette the draft Management Plan, again not a matter within our control, has also affected confidence in the fishery and the willingness of overseas buyers to invest in the infrastructure necessary for them to purchase more substantial tonnages.

Over recent months we have taken numerous steps to enable us to catch and sell, both overseas and domestically, a significantly larger tonnage in the upcoming fishing year. If you think these matters are relevant to the setting of the TAC, we would be more than happy to describe those steps to you in detail, and to meet with you to discuss them. If so, please let us know.

Proposed 60 tonne catch limit

Port Phillip Scallops is extremely concerned at the prospect of a 60 tonne catch limit being imposed, whether under s 64A(1) or otherwise. Its concerns include the following:

[293]

In addition to these points, and in response to your letter dated 21 March 2017, Port Phillip Scallops makes the following submissions in opposition to the setting of a 60 tonne TAC for the fishing year commencing 1 April 2017, as you have notified us you are proposing, and in favour of a 250 tonne TAC for that year.

First, 250 tonnes is the recommended starting tonnage for the fishery in the draft management plan which has been endorsed by the full steering committee and was gazetted by the Government for public comment. 60 tonnes is completely incompatible with the carefully considered contents of that document, and the reviews and work that went into it.

Secondly, as explained in our letter to you of 20 December 2016, the most recently completed biomass survey estimated an available biomass of 5,510 tonne, and this was from a smaller survey area than the previous two surveys. A scallop population of that size can more than amply support a TAC of 250 tonnes; indeed, on the principles set out in the BMA would support a TAC of more than double that. Such a population gives no possible warrant for a 60 tonne limit.

Thirdly, in your letter of 13 February 2017 you referred to your desire for a "boutique" or "niche" fishery. If by that is meant a fishery in the order of 60 tonnes, it is incompatible with the BMA and other documents propounded by the Government at the time of the tender, and the draft Management Plan, and lacks any basis. Further, on any view a fishery with a sustainable catch of 250 tonnes, and even 500 tonnes, can correctly be described as a boutique or niche fishery. That is so both by comparison to other fisheries and bearing in mind that, when the Port Phillip scallop fishery was operating as a dredge fishery, in excess of 2,000 tonne (meat weight), which is roughly equivalent to 12,000 tonne unshucked, was frequently fished annually.

In combination, those three factors demonstrate that a TAC of 250 tonnes - which is still less than we had originally anticipated at this point - is both scientifically and commercially appropriate, and that, conversely, there is no basis for a 60 tonne limit.

A TAC of 250 tonnes for the upcoming year would allow the fishery to develop in a way that recognised the legitimate expectations of Port Phillip Scallops arising from the Baseline Management Arrangements, other tender documents and prior representations from the Department. Conversely, a TAC of 60 tonnes would be commercially disastrous for our business, and for third parties such as divers who are involved in it, without any basis for such figure to have been adopted.

Further, a TAC of 250 tonnes would be entirely consistent with maintaining the sustainability of the scallop resource in Port Philip Bay and with the objective of the Fisheries Act as set out in s 3, including "to provide for the management, development and use of Victoria's fisheries, aquaculture industries and associated aquatic biological resources in an efficient, effective and ecologically sustainable manner" and "to promote sustainable commercial fishing and viable aquaculture industries and quality recreational fishing opportunities for the benefit of present and future generations". As the survey results and all available materials make clear, there is no need whatsoever for a 60 tonne limit in order to meet such objectives.

Your letter of 21 March 2017 does not advance any reasons as to why you are minded to set a TAC of 60 tonnes for the upcoming year. We put you on notice that we do not consider that a TAC of 60 tonnes is legally justifiable. A TAC set at that level would be subject to challenge, and review by the court. Given the resources we have invested in developing the fishery and the third parties (not least of whom are the divers) who have also invested money on the basis of the government's prior statements, we would be compelled to challenge any decision to set a TAC at that level.

[299]

The Scallop Dive (Port Phillip Bay) Fishery was established in 2013 as a quota-managed fishery. The current Further Quota Order expires on 31 March 2017.
On 13 February 2017 you wrote to the licence holder outlining the proposed arrangements for the Fishery, to commence on 1 April 2017 (Attachment 2).
On 17 March 2017 the Supreme Court ordered that, by 30 March 2017, the Minister for Agriculture make and publish in the Government Gazette a further quota order pursuant to s 64A(1) of the Fisheries Act 1995 (the Act) for the Fishery, for the period 1 April 2017 to 31 March 2018.
On 21 March 2017 you wrote to the licence holder noting that you proposed to make a Further Quota Order for the period 1 April 2017 to 31 March 2018, setting the TACC at 60 tonnes (Attachment 3).
In response, the licence holder has stated that it is opposed to a TACC of 60 tonnes for 2017/18, and is in favour of a TACC of 250 tonnes (Attachment 4). The licence holder considers that a TACC of 60 tonnes is legally unjustifiable and that it would be compelled to challenge it.
A Further Quota Order has been prepared for the 2017/18 quota year to set the total allowable catch of unshucked commercial scallops (Pecten fumatus) and to specify the quantity of commercial scallops comprising a quota unit in each commercial fishing management zone of the Fishery, and to set the total allowable catch for doughboy scallops (Chlamys asperrimus) for each zone at 100 kilograms of unshucked doughboy scallops (Attachment 1)
Under the Further Quota Order, the TACC of unshucked commercial scallops for the Fishery for 2017/18 will be set at 60 tonnes. The TACC for each commercial fishing management zone has been set based on the same proportion as in the 2016/17 quota year.
As Executive Director of Fisheries Victoria and delegate for the Minister for the purpose of section 64A of the Act (the power to set the TACC for a specified period), a Further Quota Order has been prepared for your signature and for publication in the Government Gazette before 30 March 2017.

[308]

Statement of reasons

On 17 March 2017 I, Jaala Pulford, Minister for Agriculture, made a decision to revoke the Initial Quota Order for the Scallop Dive (Port Phillip Bay) Fishery (the Fishery). A copy of the decision is Attachment A.

On 21 April 2017 Port Phillip Scallops Pty Ltd requested reasons for my decision. A copy of the request is Attachment B.

In accordance with section 8 of the Administrative Law Act 1978, I now provide reasons for my decision.

Background

On 19 December 2013 the Minister for Agriculture and Food Security made:

(1) the Initial Quota Order for the Fishery, pursuant to section 64(1) of the Fisheries Act 1995 (the Act); and

(2) the first Further Quota Order for the Fishery, pursuant to section 64A of the Act, for the period commencing 19 December 2013 and ending 31 March 2015.

A copy of the Government Gazette No. S 462, publishing these two Orders, is Attachment C.

There is only one licence for the Fishery, and at all times Port Phillip Scallops Pty Ltd has been the Licence Holder.

Further Quota Orders for the Fishery were made under section 64A of the Act for the 2015/16 and 2016/17 fishing year.

My decision of 17 March 2017

I had regard to the matters identified in two briefs to me from my Department and to each of the attachments to those briefs. A copy of BMIN16006015 (redacted for privilege), with attachments, is Attachment D. A copy of BMIN7000422, with attachments, is Attachment E.

The matters identified in the briefs to me from my Department included the following:

(1) The Fishery was established in 2013 as a small-scale "niche" commercial fishery, with an initial precautionary TACC of 12 tonnes of scallops.

(2) A draft Management Plan for the Fishery and was made available for public consultation in 2016.

(3) Key recreational fishing bodies did not support the development of the Fishery to 250 tonnes of scallops or more. On the other hand, the commercial sector supported the development of the Fishery.

(4) In the 2016/17 fishing year, the TACC for the Fishery had been set at 250 tonnes of scallops.

(5) In the 2016/17 fishing year, the Licence Holder had (as of January 2017) caught about 58 tonnes of scallops.

(6) For the 2017/2018 fishing year, the Licence Holder had requested that the TACC be again set at 250 tonnes of scallops.

(7) The Government's policy is to improve recreational fishing opportunities in Victoria, and in particular to make Port Phillip Bay a prime recreational fishing destination.

I had regard to the fact that the Licence Holder was opposed to a catch limit in the Fishery of 60 tonnes of scallops per annum. That opposition had been conveyed at a meeting held on 10 February 2017 with Fisheries Victoria, and by a letter dated 24 February 2017 from Mr Don Hamley, General Manager for the Licence Holder, to Mr Travis Dowling, Executive Director of Fisheries Victoria. I had regard to the views expressed by Mr Hamley in his letter, including on the relevance of the Baseline Management Arrangements.

I came to the conclusion that, with effect from 1 April (the start of the 2017/18 fishing year), and going forward, the Fishery should no longer be managed by quota and that instead a permanent catch limit should be set by regulation at 60 tonnes of scallops per annum as a licence condition.

[310]

Statement of reasons

On 27 March 2017 I, Travis Dowling, a delegate of the Minister for Agriculture for the purposes of section 64A(1) of the Fisheries Act 1995 (the Act), made a decision, in the form of a Further Quota Order, for the Scallop Dive (Port Phillip Bay) Fishery (the Fishery). A copy of the decision is Attachment A.

On 21 April 2017 Port Phillip Scallops Pty Ltd requested reasons for my decision. A copy of the request is Attachment B.

In accordance with section 8 of the Administrative Law Act 1978, I now provide reasons for my decision.

Background

On 17 March 2017, in Proceeding No. S CI 2017 00832, the Supreme Court of Victoria ordered that by 30 March 2017 the Minister for Agriculture for the State of Victoria make and publish in the Government Gazette a Further Quota Order for the Fishery for the period 1 April 2017 to 31 March 2018.

There is only one licence for the Fishery, and at all times Port Phillip Scallops Pty Ltd has been the Licence Holder.

On 21 March 2017, I wrote to the Licence Holder. A copy of my letter is Attachment C.

On 23 March 2017, the Licence Holder responded to my letter of 21 March 2017 and made submissions in respect of the proposed TACC of 60 tonnes. A copy of the letter from the Licence Holder is Attachment D.

On 24 March 2017, the decision made by Minister Pulford on 17 March 2017, revoking the Initial Quota Order for the Fishery, was gazetted. A copy of that decision is Attachment E.

Reasons for decision

In making my decision on 27 March 2017, I had regard to a range of matters falling within the following broad topics (listed in no particular order):

(1) the terms of section 64A, in the context of the Act;

(2) the context in which my decision to make a Further Quota Order for the 2017/18 fishing year was being made;

(3) the submissions made by the Licence Holder;

(4) the establishment of the Fishery as small scale, niche commercial dive fishery;

(5) concerns of the recreational fishing sector:

(6) scallop biology and biomass studies;

(7) past catch in the Fishery by the Licence Holder;

(8) economic analysis for the Fishery, with a limit of 60 tonnes per year.

Statutory context

I had regard to the terms of section 64A, and the objectives set out in section 3 of the Act.

Where there is a declaration under section 64 that a fishery is to be managed by the allocation of quotas, a further quota order under section 64A sets the total allowable catch for a specified period for the quota fishery and determines the quantity of fish comprising an individual quota unit in a quota fishery in a specified period. Both the total allowable catch and the quantity of fish comprising an individual quota unit can be reduced under s 64A before the end of the specified period. In theory, the total allowable catch under a further quota order can even be set at or reduced to zero.

In general, the power to make a further quota order, including the setting of a total allowable catch for the period specified in the order, are exercised in the light of the statutory objectives set out in section 3 of the Act, including the management, development and use of Victoria's fisheries and associated aquatic biological resources in an efficient, effective and ecologically sustainable manner; the protection and conservation of fisheries resources, habitats and ecosystems including the maintenance of aquatic ecological processes and genetic diversity; the promotion of sustainable commercial fishing and quality recreational fishing opportunities for the benefit of present and future generations; and the facilitation of access to fisheries resources for commercial, recreational, traditional and non-consumptive uses.

Context in which the decision to make a Further Quota Order was being made

By an order made on 17 March 2017 and gazetted on 24 March 2017, and commencing on 1 April 2017, the Minister for Agriculture revoked the Initial Quota Order in relation to the Fishery. Accordingly, with effect from 1 April 2017, the Fishery would cease to be managed as a quota fishery. Nevertheless, pursuant to the orders made by the Supreme Court, a Further Quota Order for the fishing year 2017/18 was required to be made and gazetted by 30 March 2017, one day before the expiry of the Further Quota Order for the fishing year 2016/2018.

Submissions by the Licence Holder

The submissions by the Licence Holder, in relation to the proposed TACC of 60 tonnes for the 2017/18 fishing year, made the following key points.

(1) Past catch, and the prospect of a given quota being fully utilised, are irrelevant to the setting of the TACC. Notwithstanding that view, the Licence Holder submitted that the under utilisation of quota to date was due to difficulties encountered in developing the new business, including delays in obtaining export approval and complexities of live export.

(2) The proposed TACC of 60 tonnes was inconsistent with:

(i) the basis on which the licence had been granted and acquired;

(ii) the Commercial Scallop Dive Fishery (Port Phillip Bay) Management Arrangements (November 2013) (the BMA);

(iii) TACC being based on survey results;

(iv) the commitment made by Fisheries Victoria that it was committed to and supportive of a strong commercial fishery in Port Phillip Bay.

(3) The proposed TACC of 60 tonnes lacked any rational justification, whether ecological, commercial or otherwise.

(4) The following considerations were relevant:

(i) A TACC of 250 tonnes was the recommended starting tonnage for the Fishery in the draft Management Plan endorsed by the steering committee and released for public comment.

(ii) The most recently completed biomass survey estimated an available biomass of 5,510 tonnes, which could support a TACC of 250 tonnes. On the principles set out in the BMA, a TACC of double this amount could be supported.

(iii) The view that a TACC of 60 tonnes reflects a 'boutique' or 'niche' fishery is incompatible with the BMA, other government representations at the time of establishing the Fishery, and the draft Management Plan, and it lacks any basis. A TACC of 250 tonnes, or even 500 tonnes, can correctly be described as a boutique or niche fishery.

(5) A TACC of 60 tonnes would be commercially disastrous for the business of the Licence Holder, and for third parties such as divers who are involved in that business.

(6) A TACC of 250 tonnes would be consistent with:

(i) principles of sustainability;

(ii) providing for the development and use of Victoria's fisheries resources in an efficient, effective and ecologically sustainable manner; and

(iii) promoting sustainable commercial fishing and viable aquaculture industries and quality recreational fishing opportunities for the benefit of present and future generations,

in accordance with the objectives of the Act.

Establishment of the Fishery as a small scale, niche commercial dive fishery

The Fishery was established in 2013 as a small-scale, 'boutique' or 'niche' commercial dive fishery. These concepts of a small-scale, nice or boutique commercial fishery, together with preserving existing access to the scallop fishery in Port Phillip Bay by recreational fishers, were strong themes in communications at the time of establishment, including in the document, Proposal to establish a commercial dive fishery for scallops in Port Phillip Bay, which was released for public consultation prior to the public auction of the single licence comprising the Fishery.

The decision to provide for an initial TACC of 12 tonnes reflected the unknown stock status of scallop in Port Phillip Bay at the time the Fishery was established, as well as the precautionary, conservative approach to the setting of the TACC provided for in the BMA, which was issued prior to the public auction of the single licence comprising the Fishery. The BMA outlined the management framework under which the Fishery would potentially be developed.

Concerns of the recreational fishery sector

In late 2015, Fisheries Victoria commenced stakeholder consultation in relation to a draft Management Plan for the Fishery, proposed to be declared under section 28 of the Act. The draft Management Plan released for public consultation set out (amongst other things):

(1) a conservative approach for commercial harvesting (i.e. 10 to 20 percent of estimated biomass per annum) or 750 tonnes, whichever is lower during the development of the Fishery;

(2) the rationale for the approach being:

(i) to ensure that harvest remains sustainable in the event of high mortality and/or slow growth;

(ii) to ensure that, in combination with size limits, sufficient reproductive potential is retained; and

(iii) to account for the vulnerability of scallops to fishing because they are sedentary and aggregated in beds;

(3) the single Licence Holder would be able to catch an increasingly greater proportion of the biomass, subject to the Licence Holder taking at least 75 percent of the total allowable catch in the previous fishing year and a ceiling of 750 tonnes; and

(4) a maximum TACC for the 2016/2017 fishing year of 250 tonnes.

Fisheries Victoria received a large number of submissions in response to the draft Management Plan. A number of submissions from the commercial sector supported the draft Management Plan. On the other hand, key recreational fishing bodies did not support the draft Management Plan. Some of the key concerns which were expressed regarding the draft Management Plan were as follows:

(1) the draft Management Plan contemplated that the Fishery could increase to a total allowable catch of 750 tonnes, which exceeded the recreational fishing bodies' understanding of the size of the Fishery based on consultation during the introduction of the Fishery;

(2) when the Fishery was established in 2013, government did not communicate that the Fishery would be permitted to grow substantially beyond the initial total allowable catch of 12 tonnes; and

(3) the rate of development of the Fishery since establishment was not consistent with the risk-based, precautionary development of the Fishery.

Scallop biology and biomass studies

Scallop fisheries are characterised by naturally sporadic and fluctuating abundance and irregular, episodic recruitment, which is heavily influenced by environmental conditions (such as predation).

Scallop aggregate in sub-populations (scallop beds), which vary temporally in size and location. As a result, the amount of scallops that can be taken sustainably may vary considerably from year to year.

Existing knowledge of the scallop resource (including the impact of the dredge fishery) in Port Phillip Bay is limited. Data on scallop biomass (i.e. stock status) in Port Phillip Bay since the closure of the Port Phillip Bay dredge fishery in 1997 is limited to the following stock surveys commissioned by the Licence Holder, following the establishment of the Fishery:

(1) a dive survey report prepared by Fisheries Victoria (dated October 2014) showing available biomass of 3,629 tonnes;

(2) a dive survey report prepared by Dr David Gwyther of Picton Group Pty Ltd (dated October 2015) showing available biomass of 11,065 tonnes; and

(3) a dive survey report prepared by Dr David Gwyther of Picton Group Pty Ltd (dated October 2016) showing available biomass of 5,510 tonnes.

Past catch in the Fishery by the Licence Holder

Historically, the TACC for the Fishery has increased in each fishing year since establishment in 2013. However, in each fishing year, the TACC has not been fully utilised.

[311]

Economic analysis for the Fishery

An economic analysis undertaken by Fisheries Victoria indicated that a TACC of 60 tonnes for the Fishery would provide an estimated gross landed value of between $900,000 - $1,200,000, based on a beach price of $15 - $20 per kilogram (as reported in the most recent annual report submitted by the Licence Holder).

Conclusion

After consideration of all of the matters set out above, I concluded that the Further Quota Order for the 2017/18 fishing year should be in the following terms:

(1) the total allowable catch of unshucked commercial scallops for the Fishery should be set at 60 tonnes accross the six quota management zones;

(2) the total allowable catch for doughboy scallops (Chlamys asperrimus) for each scallop commercial fishing management zone is 100 kilograms of unshucked doughboy scallops;

(3) the quantity of doughboy scallops comprising a quota unit for the quota period in each scallop commercial fishing management zone of the Fishery is 100 kilograms.

I considered a TACC of 60 tonnes to be consistent with the concept of a small-scale, niche commercial fishery, which underpinned the establishment of the Fishery in 2013. I considered a TACC of 60 tonnes to be consistent with general expectations of the recreational fishing sector in relation to the size and scope of the Fishery, in circumstances where a consideration in establishing the Fishery was the impact of any commercial fishery on recreational fishing.

A TACC of 60 tonnes reflects a precautionary, conservative approach. I considered such an approach to be appropriate and reasonable, having regard to scallop biology and limited existing knowledge of the scallop resource in Port Phillip Bay. This approach and the knowledge constraints in relation to stock have been consistent themes since before establishment of the Fishery.

I had regard to the stock surveys undertaken since the Fishery was established. In exercising the power under section 64A(1) of the Act, I am not limited to considering stock surveys and estimated abundance. The stock surveys suggested that the available biomass of scallops is fluctuating and variable. It remains appropriate to adopt a precautionary, conservative approach in setting the TACC, having regard to the statutory objectives (including the efficient, effective and ecologically sustainable management, development and use of the fishery, and the protection and conservation of fisheries resources). Further, taking into account the submissions received from the recreational fishing sector in response to the Draft Management Plan, a TACC of 60 tonnes would promote quality recreational fishing opportunities in addition to commercial fishing for the benefit of present and future generations, and would facilitate access to fisheries resources for recreational uses together with commercial uses.

I note that the draft Management Plan has not been declared. Even if it had been declared, its contents, while relevant, could not fetter my discretion under section 64A(1) of the Act.

Although past catch is not determinative, it is generally a relevant consideration in determining a total allowable catch for any quota managed fishery. In the current circumstances, it is relevant that in the most recent fishing year the Licence Holder (who holds the only licence for the Fishery) reported catch of 23.2 percent of TACC. In taking into account this matter, I have accepted that the development of the new business would have contributed to under utilisation of the TACC.

I was not persuaded by the submission of the Licence Holder that a TACC of 60 tonnes would be commercially disastrous, in the light of the economic analysis undertaken by Fisheries Victoria.

Finally, a TACC of 60 tonnes is consistent with the Government's policy, conveyed to the Licence Holder in February 2017, of changing the Fishery from a quota managed fishery to one where the annual catch limit would be set by regulation at 60 tonnes per year. Although this policy cannot fetter my discretion under section 64A of the Act, I considered that it was a relevant matter to be taken into account in the exercise of my discretion.

I decided that the TACC for each commercial fishing management zone should be set in the same proportions as allocated for the 2016/2017 fishing year. I was of the view that this allocation would allow the Licence Holder to maximise the yield from the more productive and food safety approved areas.

[468]

[152] On the contrary, arguably it would have been legally inappropriate for the Minister to disregard the perceptions and strongly felt concerns of the 'recreational fishing lobby' as to the likely future of recreational fishing opportunities in Port Phillip Bay (cf s 3(c) of the Act) should the plaintiff's operations in the Bay be permitted to expand as the plaintiff was seeking to do; and this regardless of whether those perceptions and concerns (as to the future) were considered to be misconceived. In Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422, 434-444 [40]-[74], where a statutory power to approve permission for gaming was exercisable only where '... the net economic and social impact of approval will not be detrimental to the well-being of the community of the municipal district in which the premises are located', the Court of Appeal held that community opposition was a mandatory relevant consideration. See also Harburg Investments Pty Ltd v Mackenroth [2005] QCA 243; [2005] 2 Qd R 433; Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) 284 [5.50]. An order revoking an IQO is quasi-legislative. It is a 'legislative instrument' within the meaning of the Subordinate Legislation Act 1994. In the present case, the revocation was part of a package of measures which included the making of the Regulations imposing the 60 tonne cap. The situation is thus, to a considerable extent, comparable with the restructure, by amending regulations, of the River Murray fishery that was the subject of South Australian River Fishery Association Inc v South Australia [2003] SASC 174; (2003) 85 SASR 373. In that case it was held that the taking into account of political considerations did not render the amending regulations invalid for improper purpose: [2003] SASC 174; (2003) 85 SASR 373, 391-393 [107]-[117] (esp [115]-[116]) (Doyle CJ), 413-416 [204]-[213] (esp [209]) (Gray J), 417-421 [220]-[243] (esp [236], [242]) (Besanko J).

At a glance

Court

Decision date

Before

Source

Judgment (479 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (30)