And: SECRETARY TO THE DEPARTMENT OF PRIMARY INDUSTRIES AND

R.C. Jennings QC(1) (Deputy President), I.A. Wilkins(1) (Member) and

Fisheries - development plan for great australian bight trawl Fishery - endorsement of licence refused by decision maker lacking necessary statutory authority - subsequent decisions found jurisdiction - criteria not determined prior to application for endorsement - applicant's history and experience meet criteria - likely effect of additional licence on policy objectives minimal.

The decision under review is set aside and the matter remitted to the respondent with a direction that the applicant's licence be endorsed to permit him to operate forthwith in Sector A of the Great Australian Bight Trawl Fishery to a depth of 200 metres.

Jurisdiction for this Tribunal to review a decision of the Secretary to the Department of Primary Industries and Energy ("the Respondent") is conferred by s.16A(1) of the Fisheries Act 1952 ("the Act"). Only "reviewable decisions" may be so reviewed (subsection (6)).

2. In order to explain how this Tribunal has jurisdiction to hear the present application, it is necessary to detail a number of events which led to the making of a reviewable decision.

3. The Federal Minister responsible for Fisheries (Mr. Kerin) and Ministers for Fisheries in Western Australia and South Australia announced a development plan for the Great Australian Bight Trawl Fishery (GABTF) extending from Cape Leeuwin to Kangaroo Island.

A media release described it in the following terms:-

"The plan provides for three zones. The first is adjacent

to the South Australian coast presently exploited by the

traditional South Australian marine scale fishery and where

trawling will be entirely prohibited. The second is an

area off Western Australia, extending from the Eastern

group islands to Cape Leeuwin and inside the 100 fathom

line. In that area operators will be allowed to trawl

provided they meet the established entry criteria. The

third zone comprises the remainder of the Great Australian

Bight.

The first zone was described on an indicative map as "C". The second was "B" and the remaining zone "A". The release continued:-

"The Ministers said people interested in developing the

Bight are invited to submit proposals to the Director of

the Australian Fisheries Service who would provide details

of the conditions under which development would be

permitted.

After an assessment of proposals, there would be a total

closure of the area to trawl fishing, with only those

suitably endorsed permitted to trawl in the fishery."

4. "An application for a Development Licence" for the GABTF was made by the applicant on an unspecified date. It followed, almost precisely a document described as Attachment B which appears at p 10 of a document marked TA2 which was lodged with the Tribunal together with others required by s.37 of the Administrative Appeals Tribunal Act 1975.

5. On 12 May 1987 the Assistant Director of the Southern Fisheries Branch of the Australian Fisheries Service (Mr. B.V. Lilburn) made an assessment of 34 applications received from persons seeking boat licence endorsements under the Act to permit their use in the GABTF (T4). Mr. Lilburn prepared the report after consultation with the Directors of Fisheries from Western Australia and South Australia. It was sent to the Commonwealth Minister for his information (TA5) by Mr. Blamey the Director of the Australian Fisheries Service.

6. The Minister approved the issue of a draft media release and agreed to the recommended imposition of a levy on successful applicants for endorsement (TA5). He was asked to note that endorsements "will be issued" to six applicants for boats to be nominated (ten vessels) and that three applicants "will be granted restricted access to Sector A of the fishery" (four vessels). The names of the persons who would be issued licence endorsements were revealed when the Minister released the proposed statement on 18 May.

7. Mr. Lilburn advised the applicant by telegram that his application for endorsement to operate in Sector A of the GAB had not been successful. He sent similar telegrams to other unsuccessful applicants. It should be noted that Mr. Lilburn was not a delegate of the Minister or the Secretary and that no other person made any decision at that time in relation to the applications which were refused.

8. Mr. Lilburn sent a letter to all unsuccessful applicants explaining in some detail the matters which were considered before determining applications. There followed in the case of the applicant a paragraph relating to his application only to the following effect:-

"Your application indicated that your primary intention was

to trawl for scallops in the area to be covered by Sector

"B". From the information provided, your commitment to

operate in Sector "A" of the fish trawl fishery, as well as

experience in the processing and marketing of trawl fish

including your processing and marketing infrastructure in

the area was not considered to be sufficient to warrant the

issue of an endorsement."

9. By three Fisheries Notices the Minister prohibited the taking of fish by trawling in an area of proclaimed waters (s.4(1) and s.7) which the Tribunal was told was Sector A of the GABTF. The notices provided that trawling was exempt from that prohibition if a licence under s.9(2) was endorsed pursuant to s.9(4) of the Act.

10. The applicant wrote to the Secretary seeking review of Mr. Lilburn's decision.

11. The applicant was informed that continued trawl fishing in Sector A was illegal.

12. A review panel, which did not purport to possess any statutory authority considered formal requests for review of Mr. Lilburn's decisions (which had also of course been made without statutory authority.) One of them was the request by the applicant. The panel was chaired by Mr. C. McGregor. A summary of the applicant's claims, the reasons he had been refused endorsement and the panel's comments were then forwarded to Mr. D. Wesney a delegate of the respondent.

13. Mr. Wesney wrote on the document prepared by the panel "application refused for reasons outlined above".

14. The decision Mr. Wesney so made can be treated as a relevant decision for the purposes of s.16A(1) because it was a decision by a delegate to refuse an application for endorsement of a licence under s.9(4) of the Act.

15. The applicant was advised by letter of the reasons for the delegate's decision "to review the decision not to grant endorsement."

16. Material lodged on behalf of the applicant for the purposes of this present review was sent to Mr. John Kerr, Assistant Director of the Southern Fisheries Branch of the Department of Primary Industries and Energy.

"There was a defect in the original decision making process

in that the person holding your office at the time the

decision was made did not hold the appropriate delegation;

you now hold the appropriate delegation."

18. The person to whom the letter was addressed has noted on it:

"Decision upheld for failing to meet selection criteria".

19. The decision of 12 September 1988 is a "reviewable decision" because it was a decision by a delegate of the Secretary to substitute his decision for a "relevant decision", but in the same terms as the former (s.16A(4)).

20. Accordingly this Tribunal's task is to review the decision of 12 September 1988. Unfortunately because the Tribunal heard the application on 15 September 1988, there was insufficient time for the respondent to comply with the provisions of s.16A(5). The reasons for the decision have therefore not been given other than the brief note referred to above.

21. In addition to the set of documents marked TA1 to TA8 which related to the development plan generally, the Tribunal also received a set of documents marked T1 to T21. The application made for endorsement appears at pages 39-50 of T3. Some of the T documents relate to all applications for access to GABTF, others to the applicant's claim only. The respondent also produced as Exhibit 1 a copy of the letter dated 6 September 1988 from Mr. Peterson to Mr. J. Kerr, Assistant-Director of the Southern Fisheries Branch. Mr. McGregor who is the Manager of the GABTF in the Australian Fisheries Service of the respondent's Department gave evidence. The applicant gave evidence in person and his case was conducted by Dr. Walker who is a fisheries consultant with prior experience in the West Australian Department of Fisheries for eleven years. Dr. Walker worked in the GABTF from 1977 to 1979 with British United Trawlers. He also gave evidence in support of the applicant's case.

22. Documentary evidence produced on behalf of the applicant included three documents (Exhibits 3, 5 and 6) which did not greatly assist us and a location map (exhibit 4) which we found invaluable for the purpose of understanding the evidence and issues. The applicant also presented a very useful document prepared for the purposes of his case by Dr. Walker. It has two appendices which are the same as pages 12-22 of T1 and reproduced in more legible form.

23. For the purpose of understanding the case as presented by the applicant it is necessary to refer to pages 3-11 of T1 and the unnumbered pages of the written case prepared by Dr. Walker.

24. We were assisted to some extent by all the oral evidence adduced, although we found much which was either irrelevant or the relevance of which was not made plain to us. We found no reason to doubt the factual veracity of any of it or any opinions which we regarded as material to the issues. We find no reason to examine it in detail and to make any specific findings preferring any particular evidence to any which might appear to be in conflict with it.

25. We regard the issue for our determination, as will appear, to be simply whether the applicant should be granted an opportunity to enter any part of Sector A of the GABTF for the remaining period of the development programme which the Commonwealth has established pursuant to appropriate Fisheries Notices. Our task is to determine whether the recent decision refusing him that access should be replaced by a preferable decision granting him access to the whole or some part of that area.

26. Unlike many other fishery cases that have come before this Tribunal the criteria for determining the success or otherwise of an application were not published to fishermen before they were required to make application.

27. The development plan announced in September 1986 said as to Sector A of the fishery -

18. "Applicants will be judged on the basis of their experience

in both catching and marketing fish and their projected

development strategies including proposals to assess deep

water trawl grounds and the pelagic fisheries. Projected

marketing strategies will also be closely assessed to

identify the extent of such operations and how market

opportunities will be maximised both in Australia and

overseas."

The information applicants were required to furnish (formal parts omitted was as follows):-

" - detailed description of vessels to be used including

type, dimensions (length, beam, draught, power),

equipment, fishing gear etc.

- home port

- proposed fishing plan

. . area of operation

. . description of gear to be used

. . disposal arrangements for catch (marketing, ports

of landing etc)

- details of experience in fishing industry, in

particular any exploratory/developmental fishery

- other relevant activities

. . current activities

. . licences held

. . endorsements held

- summary of claims of why proposal should be

supported."

28. It was not until Mr. Lilburn had decided to reject a number of applications including that of the applicant that there was any reference to criteria. After referring to the general guidelines provided by paragraph 18 of the developmental plan in his report to the Minister he said:-

"Taking account of the factors mentioned in the plan and

assessments undertaken of applications for access to

developing fisheries elsewhere in the AFZ, applicants have

been assessed against the following criteria/attributes:

1. Demonstrated ongoing intention or commitment to operate

in the fishery prior to and after the Minister's

announcement of 15 September 1986.

2. Most of the fishing time of the nominated boat or boats

is to be dedicated to the Sector "A" of the Great

Australian Bight trawl fishery.

3. The boat or boats to be Australian as defined in the

Fisheries Act 1952 and the venture to have the highest

possible Australian content.

4. Applications to be considered on the basis of allowing

for a broad distribution of viable operators within the

total number of boats that can be accommodated.

5. The proponents to have experience in processing and

marketing trawl fish and an established processing and

marketing infrastructure in the region.

Criteria combinations to be:

(i) 1-4 inclusive; all criteria to be met; or

(ii) 2-5 inclusive; all criteria to be met."

29. When Mr. Lilburn prepared his report of 12 May 1987 entitled "Assessment of proposals for access", he attached an individual assessment of the applicant's application. It concluded:

Should be considered for Sector "B" as the applicant is not

proposing to operate in the trawl fishery covered by Sector

"A"."

30. That was an erroneous conclusion. The application stated clearly that the proposed fishing plan was to operate from Albany to Eucla. That of necessity included Sector A.

31. The letter Mr. Lilburn sent to the applicant in June 1987 repeated this error. The application did not indicate "a primary intention to trawl for scallops in Sector B".

32. When the Panel reported on 8 December 1987 on its meeting with the applicant on 22 September 1987, it stated that appellants would be heard "in the light of the entry criteria set out in the application form" (T18). There is no evidence before this Tribunal that there was an application form or that any entry criteria were set out in any document prior to application. As we have pointed out the only criteria applied were those developed by Mr. Lilburn at the time he assessed the applications.

33. Nevertheless the reviewable decision of 12 September 1988 again refers to "failure to meet selection criteria".

34. The reasons for the "relevant decision" of 7 January 1988 constituted an endorsement of the Panel's comments which were as follows:-

"Mr. Green lacks experience in deep water trawling. He has

little involvement in marketing and processing of trawl

species. The vessel Helen M was considered marginal for

Sector A of this fishery."

35. The reference to "experience in deep water trawling" does not appear to be a reference to any of the criteria which Mr. Lilburn set out when he made his assessment of proposals in May 1987. We are satisfied by the evidence before us that the expression "deep water trawling" has not been adequately defined. If it means over 200 metres the absence of experience is of no concern because trawling beyond that depth is such a new resource that there are very few fishermen who could be said to be experienced. If it means up to 200 metres there is no justification on the evidence for the assumption that the applicant lacks experience. On the contrary he is most experienced.

36. The reference to "little involvement in marketing and processing of trawl species" fails to distinguish the applicant's involvement in marketing which has been extensive and in his plans for processing which are largely dependent on his securing endorsement to operate the GABTF. In any event assuming compliance with criteria to be essential the absence of prior experience in processing would not be fatal to his application if he complies with criteria 1-4.

37. The suitability of the vessel "Helen M" for use in GABTF should not have been a factor in rejecting the application for endorsement. First there is no reference in the criteria to the suitability of the vessel. Indeed when the Minister announced the names of successful applicants he indicated that they would nominate the boats whose licences would be endorsed. In any event the reason for deciding "Helen M" was marginally suitable does not address the question as to whether it was suitable for trawling at 200 metres and beyond for say orange roughey or at lesser depths for other varieties. The applicant made it clear that he was not interested in the former and had ample experience with the latter on the "Helen M".

38. There was no evidence that Mr. Wesney who made the relevant decision gave any consideration as to whether the applicant fulfilled each of the required criteria.

39. The document sent to Mr. Kerr on 6 September 1988 and which formed the basis of the reviewable decision sets out (a) the background, (b) the applicant's claims and (c) A summary.

40. The following items under the heading "background" support the applicant's claim that he had within the words of the criteria:-

"Demonstrated ongoing intention or commitment to operate in

the fishery prior to and after the Minister's announcement

of 15 September 1986.

. Mr. Green has undertaken diversified fishing operations

in recent years and has demonstrated his interest in new

and innovative fishing projects.

. Mr. Green claims to have purchased trawl gear in 1983

and suggests this proves his commitment.

- this is consistent with discussions I had personally

with Mr. Green in 1983 whilst employed on the tuna

logbook program.

. Mr. Green in 1986 equipped his vessel "Helen M" for

trawling and has been scallop trawling in the western

area of the GAB, i.e. east of 125oE.

- he was in part responsible for the development of

the State scallop fishery.

. Mr. Green has utilised another vessel the "Triumph" to

experiment in the trawl fishery.

. Mr. Green claims the above operations particularly since

June 1986 have been directed to developing mixed

bottom/scallop trawl operation.

. Mr. Green wishes to trawl waters to a depth of 200

metres, including waters east of 125oE to at least

129oE.

- this is the issue that is now raised before the

Administrative Appeals Tribunal.

. Mr. Green's vessel "Helen M" has operated in the GAB as

a tuna pole vessel.

. . . . .

The following items under "Claims" further support that commitment:

. Mr. Green has based his claims of commitment on the

purchase of appropriate trawling gear and his

demonstrated ability to be an innovative fisherman.

Further, he considers it necessary for his family's

ongoing financial security that he gains this access.

- he has also established the basis for a good

marketing strategy.

. Mr. Green provides evidence in respect of the

difficulties he has encountered in remaining in the tuna

fishery and the problems in entering other fisheries.

Through this he shows his commitment as a fisherman and

his willingness to undertake new and challenging work.

- further, he has shown a willingness to work in

co-operation with government authorities."

41. It will be recalled that Mr. Lilburn spoke of "criteria/ attributes". We regard "Criteria 2" as an attribute rather than one of the criteria:-

"Most of the fishing time of the nominated boat or boats to be dedicated to the Sector "A" of the Great Australian Bight trawl fishery", is a statement of an attribute which the boat must have in futuro. There is no reason why an endorsement cannot impose a condition to this effect if required.

42. There has never been any suggestion that the applicant's venture lacks total Australian content and thus criteria 3 is fulfilled.

"Applications to be considered on the basis of allowing for a broad distribution of viable operators with the total number of boats that can be accommodated." It suggests that there should be some variation in the kind of operations to be conducted. We heard and accept evidence that the applicants who succeeded in obtaining endorsement for Sector A east of Latitude 125o and west of 132o are all large and all have been operating extensively around and beyond a depth of 200 metres. A broad distribution would seem to render it desirable to include a boat as small as the "Helen M" which has and will operate in shallower waters for other varieties.

43. It is therefore at least clear that the applicant does not offend against Criteria 4.

44. We have found nothing in the letter placed before the delegate for the purpose of his decision of 12 September 1988 to warrant an inference that there was a failure to comply with criteria 1 to 4.

45. This Tribunal is required to form its own conclusion as to whether endorsement of licence should be granted to permit trawl fishing in the GAB. We have come to the conclusion that in so far as it is appropriate to apply the criteria developed by Mr. Lilburn for the purpose of determining his entitlement to endorsement the applicant fulfils those criteria/attributes (i.e. 1 to 4).

46. The more interesting question for resolution is whether the reviewable decision should be set aside because to do so would be the correct and preferable decision.

47. That involves consideration of the effect such a decision might have on the fishery and the policy which the Minister has adopted without neglecting the objectives he is required by s. 5B of the Act to pursue.

That section (so far as is relevant) provides as follows:-

"5B. In the administration of this Act, the Minister shall

have regard to the objectives of -

(a) ensuring, through proper conservation and management

measures, that the living resources of the

Australian fishing zone are not endangered by

over-exploitation; and

(b) achieving the optimum utilization of the living

resources of the Australian fishing zone."

48. The Development Plan is so devised that there appears to be little or no risk of over-exploitation. The Plan is based on a CSIRO report in 1981 that there was an estimated total allowable catch for demersal stocks on a number of small fishing grounds on the continental shelf break of the western Bight of 3000 tonnes/year. The Plan therefore suggested that it would be advisable to limit the number of vessels to a total which would contain a catch "to about 6 to 8 trawlers in the size range currently employed in deep water trawl fisheries off southern Australia". That assumes a capacity of up to 500 tonnes per vessel.

49. The evidence was that the applicant's vessel "Helen M" would survive with 100 tonnes with a maximum capacity of 200 tonnes per year.

50. It was also apparent from Mr. Lilburn's assessment report that there were a number of good reasons for exceeding the original estimated annual yield of 3000 tonnes which was based on previous fishing activities. He said that some of the applicants proposed to fish for pelagic resources (as well as demersal) and that the very deep water trawl areas were much more prospective. Furthermore there was evidence before the Tribunal that some of the boats granted endorsements were no longer operating.

51. In view of the fact that any development licence (i.e. endorsement to permit trawling) which the applicant can now be granted will only permit him to work the area for about another 12 months, in the first instance, there seems to be little prospect that the catch he might achieve from such a comparatively small boat for that period could conceivably approach over-exploitation of resources or threaten them in any material way.

52. It was suggested however that to grant the applicant endorsement would open the door to other fishermen similarly placed. For example, on 8 December 1987 the Chairman of the review panel made reports on 5 other applicants who sought "review" of Mr. Lilburn's decisions refusing to grant them endorsements for the GABTF.

53. Before the reviewable decision was made the delegate was advised to take into account that -

"of the 35 applicants a number who were unsuccessful have

similar claims to Mr. Green; some had previously trawled in

the GAB and made substantially greater investment than Mr.

Green.

. . these operators had generally focussed their operations

for inshore operations primarily on the scallop trawl

fishery west of 125oE.

. . investment in trawl gear by these operators was

considerable however their operations were restricted to

Sector B waters and they could not show sufficient

commitment to Sector A."

54. It seems to us that at this late stage and in the absence of specific evidence about the circumstances of fishermen who might have pursued their claims as far as the applicant has done, it is inappropriate for us to refuse to determine the merits of this application because of the possible consequences to the fishery of other successful applications.

55. The Tribunal's duty is to consider what the correct and preferable decision was for the applicant on 12 September 1988.

56. We are impressed by the need to do justice to the applicant. None of the unfortunate events which have occurred since the applicant first accepted the Minister's invitation in September 1986 to submit a proposal to the Director of the Australian Fisheries Service for trawl fishing in the GAB has been due to any failure on his part.

57. The failure to ensure that the scheme of decision making contemplated by the Act was properly observed was not due to any fault of his.

58. It is no fault of the applicant that his immediate attempt to seek review of the refusal of his application did not reach this Tribunal until September 1988. He was thus effectively deprived of the prospect of nearly one year's operations in the GAB.

59. If the consequences of now granting him endorsement had been shown to be serious for those responsible for ensuring that the living resources of the AFZ are not endangered by overexploitation this Tribunal would not hesitate to carefully weigh such factors before permitting him to gain entry to the fishery. The evidence of any such risk is minimal.

60. The applicant is a fisherman who has demonstrated serious commitment to the fishing industry in the GAB for many years and supported that commitment by substantial investment, inventive methods and dedicated hard work. Both he and his sons deserve a better opportunity to continue that commitment than they have been afforded by the administrative bungling that has delayed a proper decision for so long. We do not by this criticism intend to single out any individual, but this is the unfortunate conclusion to which we are compelled by reason of some of the events we have described.

61. We have taken account of the applicant's assurances that he does not intend to compete with the larger vessels that are permitted to operate anywhere in Sector A, but which concentrate their efforts where they can find orange roughey and other shelf species in waters around and beyond 200 metres.

62. Our conclusion is that when the interests of the applicant in the light of his history, experience and capacity to work the GABTF in that portion of Sector A which he has nominated are considered alongside the responsibility and declared policy of the Minister to investigate the GABTF without over-exploitation, there is good reason for deciding that those interests are in no way inconsistent with that responsibility and policy. Indeed they complement one another to some extent. A key element of the plan is to measure the extent and nature of the fishery resource in Sector A. The oral evidence indicated that most of the data to be obtained in the two year period is and is expected to be in the area of the 200 metre line and beyond.

63. The applicant's proposed activities are likely to provide important data on the resource inside the 200 metre line and are therefore supportive of the basic plan.

64. In our opinion therefore the decision under review should be set aside and the matter remitted to the respondent with a direction that his licence be endorsed to permit him to operate forthwith in Sector A of the GABTF to a depth of 200 metres. There will be liberty to apply.