Wait and Australian Fisheries Management Authority [2002] AATA 159 (8 March 2002)

Last Updated: 15 March 2002

CATCHWORDS - FISHERIES - Southern Shark Fishery - conditions attached to fishing permit - school shark and gummy shark quotas - whether the respondent formulated a plan of management and quota allocations in accordance with the objectives of the Fisheries Management Act 1991 - meaning of the words 'maximising economic efficiency in the exploitation of fisheries resources - whether quota should be determined having regard to the applicant's logbooks alone - decision affirmed.

Fisheries Administration Act 1991 ss. 7 and 9

Fisheries Management Act 1991 ss. 3, 4, 5, 17, 21, 32, 71, 72 and 165

Income Tax Assessment Act 1936 ss. 6 and 262A

Income Tax Assessment Act 1997 s. 3-10(1)

Re PW Adams and Australian Fisheries Management Authority (1994) 36 ALD 735

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

PW Adams Pty Ltd v Australian Fisheries Management Authority (1995) 60 FCR 387

PW Adams Pty Ltd v Australian Fisheries Management Authority (1998) 49 ALD 68

DECISION AND REASONS FOR DECISION [2002] AATA 159

ADMINISTRATIVE APPEALS TRIBUNAL )

) S2001/290

GENERAL ADMINISTRATIVE DIVISION )

Re JEFFERY WAIT

Applicant

And AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

Respondent

DECISION

Tribunal: Miss S A Forgie (Deputy President)

Date: 8 March, 2002

Place: Adelaide

Decision: The Tribunal affirms the decision of the respondent dated 20 July, 2001.

S A FORGIE

Deputy President

REASONS FOR DECISION

On 8 August, 2001, the applicant, Mr Jeffery Wait, applied for review of a reviewable decision of a delegate of the respondent, the Australian Fisheries Management Authority ("AFMA") dated 20 July, 2001. The delegate had affirmed an earlier decision of AFMA dated 21 May, 2001 setting a quota of 123 units (equating with 123 kilogrammes) for school shark and gummy shark on his permit to fish in the southern shark fishery during the 2001 season.

2. At the hearing, Mr Wait represented himself and Mr Parkin represented AFMA. Regard was had to the documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents"). Mr Wait gave oral evidence in support of his application together with Mr Neil McDonald of the South Australian Fishing Council. At the Tribunal's request, a copy of a Memorandum of Understanding dated 17 November, 2000 between the Commonwealth of Australia and the State of South Australia was forwarded by AFMA to both the Tribunal and Mr Wait. It had been referred to during the course of the hearing.

THE ISSUE

3. The issue in this case is whether the quota attached as a condition to the fishing permit issued to Mr Wait should be increased. In resolving that issue, it is necessary to consider whether regard may be had only to Mr Wait's logbooks in calculating his catch history. Both parties acknowledged that the fishing permit in respect of which Mr Wait sought review was for 2001. As 2001 has passed and quota distributed, it is not possible to alter what is past and so not possible to make an effective order even if Mr Wait were to be successful in having his quota varied; see, for example, Re PW Adams and Australian Fisheries Management Authority (1994) 36 ALD 735 (Deputy President McMahon). In view of that, the hearing proceeded on the basis that AFMA undertook to apply any variation to its decision by the Tribunal to the fishing permit issued to Mr Wait in 2002.

BACKGROUND TO THE MANAGEMENT OF SHARK FISHING

4. On the basis of the T documents, I make the findings of fact that I will set out in the following paragraphs and also set out the legislative framework within which fishing may be managed by the Commonwealth.

5. Shark fishing occurs in waters off the coast of South Australia, Tasmania and Victoria. The catch in what is known as the Southern Shark Fishery largely comprises gummy shark and school shark. For many years, there have been concerns about overfishing shark and these concerns are exacerbated by the slow growing nature of sharks, their slow rate of attaining sexual maturity and the fact that they produce only a few young at a time.

6. Until recent times, responsibility for the management of the southern shark fishery was shared between the Commonwealth and each of the three States. Before 1986, no specific licence or endorsement was required to fish for shark in Commonwealth, Victorian or Tasmanian waters. Provided a boat had appropriate licences to fish in Commonwealth or State waters, it could fish for shark. Only South Australia required an endorsement to fish for shark. Over the years there have, however, been restrictions placed on shark fishing. Those restrictions have included, for example, legal minimum lengths, legal maximum lengths, closed seasons and prohibition on the possession of certain species of shark. In 1986, limited entry was introduced in the Commonwealth sector of the Southern Shark Fishery. This was followed by an interim management plan introduced in the Commonwealth gillnet fishery based on the issue of gillnet endorsements to fishermen with a history of operating in the Southern Shark Fishery. The interim management plan did not extend to longline fishing or to fishing in State waters. Based on their catch history, fishermen were issued with either six units of net (each being 600 metres) or with five or fewer units of net. In all, 1,678 net units were allocated among 248 boats. Strategies were put in place regarding amalgamation of allocations and restrictions on the transfer of allocations in order to reduce the number of allocated nets. Levels of fishing in the Commonwealth waters of the Southern Shark Fishery reduced and, by 1988, 40% of the nets allocated to fishermen had been removed from the shark fishing industry. The allocations issued to fishermen under that interim management plan were reduced by an average of 36% in 1991.

7. As restrictions on shark fishing were introduced and varied over the years, there were various reports, media releases and information releases to the public. On 25 September, 1984, for example, the then Minister for Primary Industry said that a special Task Force, known as the Shark Task Force, was considering the introduction of controls in the Southern Shark Fishery. When the Shark Task Force reported, the Minister said, its report would be circulated to the industry and public meetings would be held in each State. While no decision on controls had been made at that time, the Minister emphasised that controls were being considered and additional investment in the industry at that time would be inappropriate (T documents, page 11). A similar warning was issued a few months later in April, 1985 (T documents, pages 12-13) following advice on 14 December, 1984 that a discussion paper would be circulated at the end of January, 1985 (T documents, pages 68-69). It was circulated on 25 February, 1985 and public meetings arranged to discuss it (T documents, page 72).

8. The introduction of limited entry in the Southern Shark Gillnet Fishery was announced by the Minister in a media release dated 29 November, 1985 and the conditions for entry were announced in an information bulletin issued by the Minister's Department on 30 December, 1985 (T documents, pages 16-19). Further details were given in a further bulletin dated 22 July, 1986 (T documents, page 20). A discussion paper outlining management options for the Southern Shark Fishery was released to members of the fishing industry on 11 December, 1986 (T documents, page 65). Limitation of boats into the Southern Shark Gillnet Fishery as from 28 February, 1986 was announced on 25 February, 1986 (T documents, page 66-67). On 17 October, 1990, the then Minister for Primary Industry and Energy warned fishermen not to invest in automatic longline equipment as options for restricting its use for taking shark would soon be finalised (T documents, page 83).

9. AFMA was established under the Fisheries Administration Act 1991 ("the Administration Act") to undertake a number of functions including:

"(a) to devise management regimes in relation to Australian fisheries;

(b) to devise fisheries adjustment programs and fisheries restructuring programs;

(c) to consult, and co-operate, with the industry and members of the public generally in relation to the activities of the Authority;

(d) to devise exploratory and feasibility programs relating to fishing;

...

(h) the functions specified in section 9 relating to consultation;

...

(m) as provided by an associated law:

(i) to establish and allocate fishing rights;

(ii) ...

(iii) functions relating to plans of management;

(iv) ...

(v) to undertake, on behalf of the Commonwealth, management responsibilities in relation to fisheries management arrangements entered into with the States and Territories;

(vi) ...

(n) ..." (s. 7)

Section 9 of the Administration Act requires that AFMA may consult with persons, bodies or Governments including persons or bodies representative of the whole or part of the industry (s. 9(1)(a)).

10. The Fisheries Management Act 1991 ("the Act"), which is an associated law for the purposes of the Administration Act (s. 4(1)) came into operation on 3 February, 1991. Pursuant to s. 17 of the Act, AFMA must either determine a plan of management for a fishery or determine that a plan of management is not warranted. Where it determines that a plan of management is warranted, it must determine the plan of management in writing after consultation with such persons engaged in the fishing industry as appear to it to be appropriate and after giving due consideration to any representations made to it. A "fishery" is defined to mean:

"... a class of activities by way of fishing, including activities identified by reference to all or any of the following:

(a) a species or type of fish;

(b) a description of fish by reference to sex or any other characteristic;

(c) an area of waters or of seabed;

(d) a method of fishing;

(e) a class of boats;

(f) a class of persons;

(g) a purpose of activities." (s. 4(1))

A "fish" is defined to include "... all species of bony fish, sharks, rays, crustaceans, molluscs and other marine organisms, but does not include marine mammals or marine reptiles." (s. 4(1))

11. In formulating a plan of management, AFMA must follow certain procedural steps set out in s. 17 of the Act. As there is no suggestion in this case that the relevant plan of management was not formulated in the appropriate manner, I have not summarised these procedural steps. The plan of management for a fishery must set out its objectives, the measures by which the objectives are to be attained and the performance criteria against which the measures taken are to be assessed (s. 17(4)). The measures that may be set out include AFMA's directing that fishing is not to be engaged in the fishery, or a particular part of the fishery, during a particular period or periods, advising the holders of fishing concessions of the direction and obliging those holders to comply with the direction (s. 17(5)). A plan of management may also determine the method or methods by which the fishing capacity of fishery, or part of a fishery, is to be measured. Those methods may include, but are not limited to, a particular species or type of fish, a particular quantity of fish, a particular area, a particular kind, size or quantity of fishing equipment, a particular number of boats and a variety of methods may be combined (s. 17(6)(a)). The plan of management may determine, or may provide for AFMA to determine, the fishing capacity permitted for the fishery in respect of a particular period or part of a period. The fishing capacity is determined by reference to the measures determined for the fishery (s. 17(6)).

12. A plan of management for a fishery may also provide for the management of that fishery by means of a system of statutory fishing rights and other fishing concessions (s. 17(6)(b)). A "fishing right" means a "statutory fishing right" (s. 4(1)) and a "fishing concession" means a statutory fishing right, a fishing permit or a foreign fishing licence (s. 4(1)). A "statutory fishing right" means the nine rights specified in s. 21 (s. 4(1)). A plan of management may provide for one or more of those nine rights (s. 21(1A)). A "fishing permit" means those permits granted under s. 32 of the Act. Upon an application being made to it in an approved form, AFMA may grant a person a fishing permit. Subject to certain qualifications which are not relevant in this case, the fishing permit authorises the person, or another person on his or her behalf, to use an Australian boat for fishing in a specified area of the Australian Fishing Zone ("AFZ") or in a specified fishery (s. 32(1)). A fishing permit may authorise the use of a boat for, among other purposes, commercial fishing generally (s. 32(4)(a)). A fishing permit is granted subject to the conditions specified in s. 32(5) and to such other conditions as are specified in the permit (ss. 32(6) and (7)).

13. Where a plan of management is in force for a fishery, AFMA must perform its functions, and exercise its powers, under the Act in relation to the fishery in accordance with the plan of management (s. 17(10)). Section 3(1) provides that AFMA must pursue the following objectives in the performance of its functions:

"(a) implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and

(b) ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on non-target species and the long term sustainability of the marine environment; and

(c) maximising economic efficiency in the exploitation of fisheries resources; and

(d) ensuring accountability to the fishing industry and to the Australian community in AFMA's management of fisheries resources; and

(e) achieving government targets in relation to the recovery of the costs of AFMA."

In addition, it must have regard to the objectives of:

"(a) ensuring, through proper conservation and management measures, that the living resources of the AFZ are not endangered by over-exploitation; and

(b) achieving the optimum utilisation of the living resources of the AFZ;

but must ensure, as far as practicable, that measures adopted in pursuit of those objectives must not be inconsistent with the preservation, conservation and protection of all species of whales." (s. 3(2))

14. AFMA may enter arrangements with the States with respect to the management of particular fisheries. That arrangement may lead to the formation of a Joint Authority (s. 71) or to an arrangement under s. 72. Where a Joint Authority is formed after an arrangement with two or more States, the fishery must be managed according to the law of the Commonwealth. Otherwise, Commonwealth or State management of the fishery is determined by reference to whether the fishery is wholly or partly in the coastal waters of the State or in the seaward side of the coastal waters of the State.

15. In a media release dated 20 March, 1991, the then Minister for Primary Industry and Energy announced that a new programme of structural adjustment would be introduced into the Southern Shark Fishery as a prelude to a longer term management regime in an effort to avert the collapse of the fishery. Discussions had been held with industry leaders about the possible economic impact of immediate reductions. As a first step, therefore, interim steps would be introduced to slow the exploitation of shark stocks while the scientific forecasts were refined. The Minister advised that the number of gillnets that each fisherman might use would be reduced according to a formula he specified. The Minister also announced that commercial hook fishing for shark would be controlled and that hook fishermen who could not establish a history of substantial dependency on the fishery would be limited to a by-catch limit per trip. Discussions would be held with State Minister regarding the introduction of complementary controls in State waters (T documents, page 84). In December, 1991, the Australian Bureau of Agricultural and Resource Economics published a paper entitled Management Options for the Southern Shark Fishery An Economic Analysis (T documents, pages 85-133).

16. On 27 July, 1993, the Senior Licensing Officer issued a notice to all operators in the Southern Shark Gillnet Fishery that the conditions in their fishing permits had been varied after concerns had been expressed by operators about the interim net reductions introduced in 1991 (T documents, page 134). Net numbers were restored but the length of headrope was reduced from 600 metres to 420 metres where operators had more than five units of net. The length of headrope was not altered for operators with fewer than five units of net.

17. In November, 1996, a report was prepared by the Southern Shark Fishery Assessment Group ("SharkFAG") to Southern Shark Fishery Management Advisory Committee ("SharkMAC") and entitled School Shark Stock Assessment (T documents, pages 149-159). In summary, it found that the mature Biomass of the school shark stock at the start of 1995 is estimated to lie between 15% and 46% of the unfished level. The report concluded that there was a high probability that then current effort would lead to further reductions in the population size of school shark. A reduction of 35% in the size of the catch would be required in order to achieve an 80% probability that the mature biomass would be above that level in 15 years time.

18. On 6 June, 1997, AFMA issued a media release entitled "Shark operators warned about increasing catches" (T documents, page 160). It referred to a meeting of SharkMAC which was held in April, 1997 and which, subject to support from the wider industry, recommended the introduction of a system of individual transferable quotas. Should it be decided that catch history would be taken into account in determining quotas, AFMA determined that catch histories after 10 April, 1997 would not be taken into account.

19. In June, 1997, Fisheries Economics, Research & Management Specialists ("FERMS") prepared a background paper entitled "Re-allocation of Fishing Concessions where Management Arrangements have Changed" for the Board of AFMA (T documents, pages 170-184). FERMS began its report by examining why governments regulate fisheries. In summary, it said that it did so as unregulated fisheries tend to become over-harvested. That in turn leads to problems of conserving the fish stock on the one hand and economic difficulties for fishermen on the other. FERMS then went on to examine three tools used to reduce over-harvesting and excess capacity. They are individual transferable quotas (ITQs), input controls and competitive total allowable catches (TACs) (as opposed to a non-competitive TAC). Each tool was considered by FERMS.

20. The report also examined the relationship between property rights in fisheries and over-harvesting and economic inefficiency. In essence, FERMS reported that a central economic problem of commercial fisheries is the over-capacity of its fishermen. That arises when the fishery's stocks are plentiful and the fishermen expand their capacity as a result. As long as there are no barriers to new entrants in the fishery, the number of fishermen operating in the fishery grows but the stock in the fishery does not. As a consequence, the catch is spread increasingly more thinly among an increasingly greater number of fishermen. In competing for greater returns than their competitors, fishermen acquire more equipment in an attempt to become more competitive against other fishermen and to increase their catch size relative to those other fishermen. In doing so, they increase the cost of fishing and reduce the net return that they would otherwise receive from their catch. Taken across all operators in a fishery, the increased costs dissipated in this way can be substantial.

21. FERMS also reported on why it considered that quota allocations based on individual operator economic efficiency is contrary to the requirement that AFMA pursue the objective in s. 3(1)(c) of the Act of maximising economic efficiency in the exploitation of fisheries resources. It noted that AFMA maintains that it would be operating against that objective were it to attempt to use the relative economic efficiency of individual harvesters as a criterion when re-allocating fishing concessions. Quite apart from that consideration, FERMS found that ascertaining the efficiency of individual operators would require analysis of detailed data, some of which is not available. The costs of such a task would have to be factored into any calculation of economic efficiency and, as they would be prohibitively expensive, must be contrary to maximising economic efficiency. Even if that were not so, it would be analytically impossible to assess each individual operator's economic efficiency given the various types of gear used in the same fishery and the various restrictions imposed on various types of gear. Were it analytically possible, the incentive for individual operators to illustrate a high degree of efficiency, FERMS said, would weaken the data base used for fisheries management and stock assessment. That would lead in turn to a need to improve the manner in which the data is validated.

22. FERMS then linked its reasons back to the issue of fishing rights with which it had dealt. In summary, basing quota on the basis of each individual fisherman's efficiency significantly weakens each fisherman's fishing concession. It does so because it creates uncertainty in the holders of those concessions and exposes them to the risk of challenge because there is no known method of determining economic efficiency in the industry. The value of a fisherman's investment in his or her investment is not a reliable measure of efficiency.

23. FERMS recommended that it was desirable that any re-allocation of fishing rights avoids differential economic or wealth impacts on resource users. Such impacts cannot be avoided and it is not possible, it suggested, to devise a system that had absolutely no impact on the relative economic positions of fishermen.

24. In September, 1997, AFMA released a paper entitled the "Allocation of Fishing Concessions where Management Arrangements Change" (Fisheries Management Paper Series FMP No. 8) setting out its policies and procedural framework for the allocation of fishing concessions where a decision has been taken to change the management arrangements in a fishery. As to the allocation of fishing concessions, AFMA said:

"Establishment of well defined, divisible, secure and transferable fishing concessions are a major factor in the successful pursuit of AFMA's ESD, economic efficiency and cost-effective management objectives. However, it is recognised that continually changing the method of allocation of fishing concessions will weaken those concessions and make effective fisheries management difficult. Accordingly, the fishing concessions that exist in a fishery at the time that management arrangements are proposed to change, are the ones that will be taken into account under any allocation of concessions required by the move from one management regime to another.

It should also be recognised that there will be instances where, in pursuing AFMA's legislative objectives, it is not possible to achieve an equivalent translation of the fishing concession when changing from one management regime to another. Clearly, in these circumstances, it is not possible to design an allocation formula that will have absolutely no impact on the relative economic position of individual operators.

...

... From a legal and fisheries management perspective, AFMA will explicitly endeavour to minimise any adverse differential economic impacts on the individual operators.

Therefore, AFMA's approach to allocation of fishing concessions is based on the premise that, in making any management changes, AFMA will ensure that:

  such changes are consistent with and support the pursuit of AFMA's legislative objectives; and

  any differential economic impacts of allocations on individual fishing concession holders are minimised unless there are reasons, justifiable with respect to AFMA's legislative objectives, that dictate otherwise." (T documents, pages 166-167)

25. On 30 April, 1999, a Memorandum of Understanding ("the MOU") had been executed between the Commonwealth and each of the States of South Australia, Tasmania and Victoria. At that time, AFMA managed the South East Trawl Fishery and the Great Australian Bight Trawl Fishery in which sharks were taken as well as the Southern Shark Fishery. Each of the three fisheries formed part of the AFZ adjacent to South Australia, Tasmania and Victoria. The MOU recorded that AFMA had decided that school shark and gummy shark would be managed by determining the TAC of each species in the Southern Shark Fishery, which was enlarged by the addition of the coastal waters of each of South Australia, Tasmania and Victoria. Holders of fishing concessions in the South East Trawl Fishery and the Great Australian Bight Trawl Fishery, already managed by AFMA, and in the enlarged Southern Shark Fishery were to be allocated individual transferable quotas for school shark and gummy shark as a means of managing those fisheries. The Southern Shark Allocation Advisory Panel ("the Shark Allocation Panel") was asked to report on the apportionment of the TAC of school shark and the TAC of gummy shark among the Southern Shark Fishery, the South East Trawl Fishery and the Great Australian Bight Trawl Fishery.

26. On 15 July, 1999, the Shark Allocation Panel issued a report entitled "Report of Advice Concerning Apportionment and Allocation in Respect of School Shark and Gummy Shark" (T documents, pages 186-208). The report began by noting that the Southern Shark Fishery was to be enlarged and the classes of persons authorised to fish in that fishery were to be increased. That was to occur by Offshore Constitutional Settlement Arrangements ("OCS Arrangements") to be made between the Commonwealth and the States of South Australia, Victoria and Tasmania under s. 72 of the Act. The OCS Arrangements would provide that all activities by way of commercial fishing for school shark and gummy shark in the coastal waters of the States would be managed by AFMA. The enlarged Southern Shark Fishery comprised various sectors including the South Australian sector of licensed fishers with access to school shark and gummy shark. Each of the sectors was defined by reference to an area of water and, in broad terms, that comprised the coastal waters (as defined in s. 5 of the Act) of each State other than Victoria for its coastal waters were designated as a shark nursery area and closed.

27. At the time of its report, the Shark Allocation Panel noted that:

The South Australian sector of licensed fishers with access to school and gummy shark comprehends about 734 licences. Of those licences about 30 authorise the taking of shark by gillnet and about 605 authorise the taking of shark by hook, about 550 of them by longline and the rest by dropline. The holders of about 47 South Australian licences also hold a licence under the Management Act authorising the taking of shark in the Southern Shark Fishery as presently constituted. ..." (T documents, page 189)

28. The Shark Allocation Panel stated that it had sent a letter to all shark fishing concession holders "in the fisheries the subject of our Terms of Reference" (T documents, page 192). That letter was dated 5 March, 1999 and addressed "Dear Shark Fisher" and does not otherwise identify the fishery within which the shark fisher fishes (T documents, pages 220-221). Given the Terms of Reference identify the Southern Shark Fishery as comprising sectors including the South Australian sector of licensed fishers with access to school shark and gummy shark, I have concluded that the letter was sent to South Australian shark fishers. Submissions were sought from individuals and groups. Meetings were held at various centres including Mt Gambier, Port Lincoln and Adelaide (T documents, page 192).

29. The Shark Allocation Panel concluded that:

"In pursuit of its objectives of 'ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle', the AFMA Board proposes such a reduction. The Panel considers that, in those circumstances, apportionment of the TAC of school shark between the three fisheries should reflect directly the proportionate share of each fishery in the recent aggregate catch of school shark of the three fisheries. The share of the TAC of the Great Australian Bight Trawl Fishery will be very small indeed if that method of apportionment is adopted. But we consider that the fishermen of all three fisheries will bear the burden of the proposed catch reduction equitably if the constraint is proportioned to the magnitude of their recent catches. We would hope that the burden could be mitigated both by provision for carry-over and carry-under from year to year and by transferability of ITQs between the three fisheries as well as between the sectors of the Southern Shark Fishery.

The Panel has reached the same conclusion about the appropriate basis of apportionment of the TAC of gummy shark. Apportionment by reference to the proportionate share of each of the three fisheries in the recent aggregate catch of those three fisheries is in our opinion equitable in its constraining effect on fishing effort, and also tends to minimise 'differential economic impacts on individual fishing concession holders.'" (T documents, pages 194-195)

30. It then went on to consider what recent period should be chosen for catch history by which to apportion among the three fisheries. Referring to AFMA's press release dated 6 June, 1997, the Shark Allocation Panel said that it could have been understood to refer only to allocation of individual transferable quotas among individual fishing concession holders in the Southern Shark Fishery as constituted at that time. The Shark Allocation Panel, however, considered that the OCS Arrangements were well publicised and that most shark fishermen, whether Commonwealth or State, would have become aware of it. Although AFMA's press release had warned that catches recorded after 10 April, 1997 would not be taken into account, the Shark Allocation Panel considered that any increase in fishing effort in the remaining months of 1997 following 10 April, 1997, whether in ignorance or with deliberate disregard of the warning, would be unlikely to have been substantial. It thought it desirable that the chosen period be as recent as might reasonably be for three reasons: it enabled the present relative economic positions of fishermen to be accurately reflected; the period would be long enough to obviate the distortions which in a short period tend to flow from the circumstances that shark catch is affected by the degree of effort being expended at different times on targeting other species; aggregations and distribution of shark vary from year to year; and weather conditions affect the number of shark taken each year. A period of four years from 1 January, 1994 to 31 December, 1997 was recommended as the apportionment period (T documents, page 197). The Shark Allocation Panel considered that the data required to support an allocation system of school shark and gummy shark is the catch history for the same period as that chosen for the apportionment of the TAC among the three fisheries (T documents, page 197).

31. It recognised that there were difficulties in ascertaining a reliable catch history for both apportionment and allocation. Much of the catch history from 1994 to 1997, the Shark Allocation Panel found, was recorded against the registration number or symbol of the vessel into which the catch was taken. Considerable difficulties would be encountered, the Shark Advisory Panel considered, were there to be an attempt to identify the particular fisheries or sectors in which shark were caught by fishermen who were authorised to fish in more than one of them between 1994 and 1997. It considered that each sector in the enlarged Southern Shark Fishery should be apportioned a share of the TAC, reasonably proportioned to the present relative economic position of that community. Each sector's share, so proportioned, is best ascertained by reference to the sector's share of recent fishery catch history.

32. After consultation with fishermen, the Shark Allocation Panel considered that a process of shark catch verification and audit was important if allocation were to be based in any way on catch history. That was so because fishermen had expressed concern that some of their number had logged shark catches greater in weight than that actually caught. Verification and audit was important to give fishermen confidence in the system and to ensure that allocation was fair to each of the fishermen. It considered whether any weight should be given to the manner in which the shark were caught (e.g. by line or by net) but decided to recommend that the manner of catching should be disregarded.

33. With regard to the position of South Australian fishermen, AFMA considered how it could establish a TAC for South Australian internal waters. This was difficult because, once again, it was difficult to establish precisely whether sharks were caught in Commonwealth waters, South Australian coastal waters or South Australian internal waters by all 734 licensed South Australian fishermen. The catch history could only be verified in relation to those who applied for a permit to fish in the Southern Shark Fishery but not otherwise. The management of AFMA proposed that the TAC for South Australian internal waters be determined by first ascertaining the ratio of verified catch to logbook catch for South Australian shark fishermen who took up a Commonwealth permit for school shark and gummy shark and then multiply the figure obtained as that ratio by the logbook catch for the remainder of the South Australian state catch during the qualifying years (T documents, page 235).

34. On 6 September, 1999, AFMA wrote to "Shark Fishers and other interested persons" (T documents, pages 240-243). It advised that it had decided at its meeting on 31 August, 1999 to accept the Shark Allocation Panel's recommendations for apportionment of the TAC among the enlarged Southern Shark Fishery, South East Trawl Fishery and the Great Australian Bight Trawl Fishery. Apportionment would be on the basis that the TAC for each fishery would be proportional to the relative aggregate catch in each during the four years from 1 January, 1994 to 31 December, 1997.

35. AFMA also announced the manner in which the TAC for school shark and gummy shark would be allocated in the enlarged Southern Shark Fishery. It noted that it had deferred making its decision on the basis on which allocation would be made in the South East Trawl Fishery and the Great Australian Bight Trawl Fishery as it had yet to determine the quota mechanism which would be adopted. In the case of the enlarged Southern Shark Fishery, it announced that it would allocate an ITQ to individual concession holders and the quota that each received would be proportional to the aggregate catch of each in their best three years during the period from 1 January, 1994 to 31 December, 1997. South Australian sector licensed fishermen with access to school shark and gummy shark were eligible for allocation of quota. AFMA foresaw that exceptional circumstances could affect a fisherman's catch and it addressed that issue when it said:

"... To a large extent, the possibility of catch history being affected by exceptional circumstances in any one year has been addressed by the recommendation that only the best three of the four year period 1994-97 be taken into account. Persons who believe that their catch history has been affected by exceptional circumstances will have the opportunity to appeal when the catch verification process has been completed, quota has been allocated, and Permits varied or granted. If you are not satisfied with your quota allocation, you can appeal after a Permit has been varied or granted, and the quota appears as a condition of the Permit. You will be notified of your full appeal rights when you receive your Permit and/or quota allocation." (T documents, page 242)

36. Enclosed with AFMA's letter was a document describing the catch history verification process (T documents, pages 244-245). It stated that catch could be verified if it had been taken legally under a valid concession endorsed for, among others, the South Australian sector of licensed fishers with access to school shark and gummy shark. Where a concession had been transferred, any catch history was also transferred with the concession. It was the responsibility of the current concession holder, and not AFMA, to obtain evidence of catch history for periods prior to his or her holding the concession.

37. In order to enable catch history to be verified, each concession holder was required to produce two sorts of documents. They were primary verifiable documents and supporting documents and were required to establish four things: a relationship between the catch and the concession by referring to the boat, skipper or concession holder; the year of the catch if not the precise date; the weight and/or the total price paid for each shark species; and that payment was received for the catch. Where each shark species could not be identified and was referred to only as "shark", "mixed shark" or "flake", the concession holder was required to claim it as catch for the species he or she believed was taken, if that were possible, and to provide as much evidence as possible to support that claim. AFMA would refer to such matters as price per kilogramme and logbooks to determine the species. If it could not do so, the catch would be verified as "other (than school and gummy) shark" (T documents, page 245).

38. The primary verifiable documents and the supporting documents were described in the following way by AFMA:

"PRIMARY VERIFIABLE DOCUMENTS: landing documents from fish cooperatives and relevant Fish Marketing Authorities, invoices, receipts, sales dockets or carrier consignment notes prepared at the time of transaction;

AND

SUPPORTING DOCUMENTS: logbooks (catch returns to authorities or personal records completed at the time the fish were taken), and financial records (eg bank statements) which show that monies were received following the taking or sale of the fish referred to in the primary verifiable document. (Individuals and companies are required to keep financial records for at least seven years for taxation purposes, and generally banks keep transaction records for a similar period of time, copies of which can be obtained by the account holder for a small fee)." (T documents, page 245)

39. On 13 December, 2000, the then Commonwealth Minister for Agriculture, Fisheries and Forestry and the South Australian Minister for Primary Industries and Resources signed an arrangement. The arrangement stated that AFMA would manage school shark and gummy shark by determining the TAC of each species and by then determining the Commonwealth component of the TAC to individual Commonwealth fishing concession holders as individual quota. That individual quota would be transferable (clause 15). As to the manner in which the TAC would be apportioned among the sectors, including the South Australian sector of licensed fishers with access to school shark and gummy shark, within the Southern Shark Fishery, the arrangement noted the recommendations of the Shark Allocation Panel in the paper entitled "Allocation of Fishing Concessions Where Management Arrangements have Changed". AFMA had accepted the recommendation of the Shark Allocation Panel for apportionment and allocation of quota for school shark and gummy shark (clause 16).

40. On 15 December, 2000, AFMA wrote to "State Shark Fisher and interested persons" to advise that the OCS Arrangements for the management of school shark and gummy shark in South Australian waters had been finalised and would commence on 1 January, 2001. The consequence of the OCS Arrangements, the recipients were advised, was that, excluding internal waters, the Commonwealth would have jurisdiction over the fishing of school shark and gummy shark in South Australian and Tasmanian waters from the low water mark to a distance of three nautical miles. In order to target the two species of shark legally in those waters, fishermen would need to apply for a Commonwealth licence and to hold quota for them. The letter went on to advise fishermen of the manner in which the TAC had been apportioned, the basis on which the TAC in the enlarged Southern Shark Fishery would be allocated, the method of application and the process of verifying catch history.

BACKGROUND TO MR WAIT'S FISHING EFFORTS AND ALLOCATION OF QUOTA

41. On the basis of Mr Wait's oral evidence, which was not contested by AFMA, and on the basis of the material in the T documents, I have made the findings of fact that I will set out in the following paragraphs.

42. Mr Wait previously held a South Australian marine scale fish licence permitting him to fish in the State's internal waters for all fish other than the great white shark. The South Australian authorities have always allocated catch entitlement on the basis of the catch history kept by each fisherman in logbooks required to be maintained under State law. On the basis of Mr McDonald's evidence, I find that South Australian fishermen used only their logbooks to verify their catch. Under the MOU, the TAC allocated to South Australian internal waters is assessed with reference to the information recorded in those logbooks.

43. Over the years, Mr Wait has sold some of his catch of shark to wholesalers but he has also sold part of his catch for cash at various Adelaide markets including the Torrens Island Power Station Market and the Fishermen's Wharf Market. Mr Wait did not give receipts for the cash sales he made at the markets and did not keep a record of those cash sales in any manner. Rather, he kept a running tally of the cash sales each month. At the end of the month, he destroyed his written tally and added the total he had reached to the total of the previous months' cash sales. He maintained a mental record of the total cash sales as the year progressed. When Mr Wait saw his accountant once each year, he gave his accountant the total of his cash to include in his income tax return but did not give him any supporting documentation.

44. Mr Wait did not necessarily bank the money he received for the cash sales of his fish as he might use it to pay expenses. As a consequence, his bank statements cannot be used to identify cash sales and, together with evidence of the market price of shark at the time, cannot then be used as a basis for ascertaining the weight of shark those cash sales reflect.

45. He was aware that there were discussions between the Commonwealth and the State of South Australia as to changes in regulation of the fishery but it was not clear to Mr Wait what the new rules would be. As far as he was aware, the word "verified" was used on many occasions in relation to a fisherman's catch history but its meaning was never discussed. It was not until some later time that Mr Wait became aware that documents such as sales dockets would be required by AFMA to verify his catch history in addition to his logbooks.

CONSIDERATION

46. Mr Wait challenged AFMA's decision on the basis that the quota allocated to him did not enable him to earn a living from shark fishing. Were he to be given additional quota to enable him to do so, he recognised that other fishermen would suffer a reduction in quota. He did not consider that this should happen as it was not fair to those other fishermen. At the same time, he recognised that there was some need to conserve shark stocks.

47. Although he did not specifically challenge the basis upon which AFMA had formulated its policy according to which it had made its decision regarding his quota, his argument necessarily requires me to consider whether

his decision should be reviewed in light of AFMA's policy. That necessarily requires me to consider whether the policy is lawfully made and, if so, whether it should be applied in Mr Wait's circumstances. The reasons for this approach were stated by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 with regard to Ministerial policy:

"When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.

The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.

The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review." (page 645)

48. In following this approach, I am mindful that this case has not provided a forum for testing the written material in the T documents. My consideration has necessarily been limited by that factor. I have summarised the various steps in the development of AFMA's policy regarding the management of the Southern Shark Fishery as those steps are revealed to me in the documentary material. Its pertinent aspects are that AFMA set a TAC for the fishery and it apportioned that TAC amongst its various sectors proportionate to the catch history in each of those sectors. It then allocated that TAC to individual fishermen in proportion to their catch history taken over their best three years in a four year period. That four year period, extending from 1994 to 1997, ended three years before the introduction of the management system on 1 January, 2001. The catch history was required to be verified, in effect, by documents prepared for more than one purpose and reflecting the fishermen's dealings with the shark that he or she caught. It allocated each fisherman's share of the TAC by imposing a condition on the licence he or she was granted by AFMA pursuant to s. 32 of the Act.

49. In formulating this policy for the management of the Southern Shark Fishery, AFMA was required by s. 3 of the Act to pursue the objectives set out in that section. While no suggestion was made at the hearing that the policy had been formulated without regard to these objectives, it is necessary to consider whether AFMA has met the objective in s. 3(1)(c) i.e. that it maximise economic efficiency in the exploitation of fisheries resources. That consideration becomes necessary in view of Mr Wait's observation that the quota that he has been given does not enable him to conduct an economically viable business of fishing for school shark and gummy shark. It requires a consideration of what is meant by "maximising economic efficiency in the exploitation of fisheries resources".

50. After considering the way in which economists use the word "efficiency" and the distinction that they draw between "efficiency" and "fairness", Sackville J in PW Adams Pty Ltd v Australian Fisheries Management Authority (1995) 60 FCR 387 went on to say in considering AFMA's plan of management in relation to the management of Danish seine fishing in the South East Fishery and the conditions attached to fishing permits issued under s. 32 for the years 1993, 1994 and 1995:

"The meaning of s 3(1)(c) is to be ascertained by a process of statutory construction, not by the application of text book economics. Nonetheless, in my view s 3(1)(c) is concerned, at least in part, with productive efficiency in the sense of maximising output at least cost to the operators of the vessels comprising the fishing industry which exploits the resources of the SEF. The paragraph directs attention to economic efficiency "in the exploitation of fisheries resources". Fisheries resources are exploited, in the first instance, by catching fish. They are also exploited by selling fish. The criterion of economic efficiency doubtless requires attention to be paid to returns likely to be derived from the catch, since this is necessary to assess the economic rent derived by the industry. But the criterion also requires that some attention should be paid to the resources -- the capital and labour -- required to produce the catch. For example, an industry that relies on a relatively old and poorly equipped fleet, requiring a high labour input for a given catch, is presumably more costly and therefore less efficient than one which utilises modern, technologically advanced vessels." (page 400)

51. This analysis was approved by the Full Court of the Federal Court on appeal when it said:

"The construction his Honour adopted is supported by the terms of a policy statement released by the Minister in December 1989. This policy statement was referred to in the Second Reading Speech in which the Bill which became the Act was introduced; see House of Representatives, Hansard, 6 December 1990, pp 4644 et seq. Amongst other things the policy statement said:

'The three overriding objectives of the management controls outlined in this policy statement are:

  to ensure the conservation of fisheries resources and the environment which sustains those resources;

  to maximise economic efficiency in the exploitation of those resources; and

  to collect an appropriate charge from individual fishermen exploiting a community resource for private gain.

Achievement of these objectives will create a stable economic and biological environment in which fishermen can operate with greater confidence and economic security.

Management controls which maximise economic efficiency involve a lower level of fishing effort and lower costs than in an uncontrolled situation, and in virtually all cases are also consistent with the biological sustainability of the resources.'

Paragraph 1.2 of the statement is headed, 'Scope of policy statement'. It is there said:

'The Government recognises that commercial fishermen as entrepreneurs aim to maximise profits. It also recognises the propensity for fisheries to attract excess investment, resulting in over-exploitation and reduced profitability. The Government's aim in managing fisheries is, therefore, to create conditions where the reasonable business aspirations of fishermen can be attained while safeguarding the fishery resource.'

From these statements it may be seen that a principal aim of the policy was to balance the need for conservation and, at the same time, to have regard to the reasonable business aspirations of fishermen. That would be achieved by maximising economic efficiency in the exploitation of the fishery." (Australian Fisheries Management Authority v PW Adams Pty Ltd (1995) 61 FCR 314 at 331, per Sheppard J with whom Tamberlin and Lehane JJ agreed)

52. As to the creation of individual transferable quotas created as part of the management plan under consideration and based on the allocation of TAC between boats on the basis of their historical catch between 1984 and 1989, Sheppard J considered an argument advanced on behalf of AFMA that:

"... creation of individual transferable quotas was an integral step in maximising economic efficiency in the exploitation of the resources of the fishery. The creation of quotas permitted operators to adjust their fishing capacity through the purchase and sale of quotas with the effect of maximising individual efficiency. Cost efficient operators would be expected to purchase quotas from less efficient operators who would leave the industry. In this way, the amount of fishing inputs used to take the allowable catch would be reduced and overall economic efficiency increased. ..." (page 332)

53. His Honour rejected this argument and said, in part:

"... I do not gainsay that it would be possible to give effect to 3(1)(c) of the Act by instituting a system which took account only of catch history, nor do I gainsay that it may be possible to achieve that end by creating a situation in which economically weaker operators would sell and leave the field. That is not, however, how I perceive the material which was before the Tribunal. It seems to me to be more consistent with a situation in which the Authority had to deal with a number of existing operators in the fishery who stood to lose substantial amounts of money and their livelihoods as a consequence of taking into account boat units which were designed to reflect the investment made in equipment and which would have given effect to the objective mentioned in the policy statement of encouraging the efficient operation of operators. Taking account only of catch histories, and long past catch histories at that, would be unlikely to have the effect contended for by counsel. ..." (pages 332-333)

54. Whether or not AFMA has actually achieved the objective in s. 3(1)(c) will no doubt be a matter of debate. The stance taken by each participant in that debate may be determined to some extent by the effect which AFMA's plan of management is perceived to have had on his or her interests or on the interests of the industry as a whole. Even though it is quite probably a matter that can only be determined, if at all, with hindsight, it is not a matter that I must decide at the moment. I need only consider whether, having regard to the plan of management for the Southern Shark Fishery and to all of the documents, I am satisfied that AFMA has "pursued" the objective of maximising economic efficiency in the exploitation of fisheries resources in its managing the Southern Shark Fishery. That is to say, I need only consider whether it has done so in the sense that it has tried to attain that objective (The New Shorter Oxford English Dictionary, 1993).

55. In formulating its policy for the management of the Southern Shark Fishery, I find that it preceded its considerations of the details of its management plan by examining material that is directly relevant to the objective. I refer in particular to the FERMS' report. It looked to what constitutes economic efficiency in a fishery. It looked also to the manner in which both the fishing industry's economic efficiency could be ascertained as well as that of individual fishermen operating in a particular fishery. FERMS looked to the manner in which economic efficiency could be achieved and, in particular, whether it could be achieved through a quota system while at the same time maintaining, to the greatest degree possible, the relative economic position of fishermen engaged in the fishery. In doing so, it had regard to the conservation of the fishery resource.

56. The consideration given to the quota system must also take place against the background of the previous regulation of the Southern Shark Fishery before it was enlarged and in South Australian coastal waters before they were included within the Southern Shark Fishery. Restrictions were imposed on shark caught in the Southern Shark Fishery in the area under Commonwealth control but the material does not reveal any restrictions imposed by South Australia other than on the size of the shark caught and the times at which they could be caught. Gear restrictions were also imposed by the Commonwealth.

57. The quota system AFMA adopted as part of the overall fishing management plan attempts to maintain the relative economic position of those who participated in all of the relevant sectors of the industry. Certainly, the years chosen as the basis of establishing each fisherman's catch history for the purpose of applying the quota system are some time in the past given that the quota system commenced on 1 January, 2001. Those years, however, were the years chosen as the basis for the assessment of the TAC and, if relativities are to be maintained, it would seem appropriate that the same years are chosen. Furthermore, those years were substantially after the then Minister for Primary Industries and Energy announced on 20 March, 1991 that a new programme of structural adjustment would be introduced and that the States would be approached to discuss complementary measures in waters under State control and to discuss a united approach to overfishing.

58. Taking all of the material into account, I am satisfied that AFMA has, in introducing a quota system and in introducing a quota system with the characteristics that it has, met its obligation to pursue the objective in s. 3(1)(c) of the Act. That brings me to the conditions imposed on Mr Wait's permit. In her judgement in PW Adams Pty Ltd v Australian Fisheries Management Authority (1998) 49 ALD 68 Branson J considered whether AFMA must have regard to the objectives in s. 3, and in particular s. 3(1)(c), in considering the conditions to be specified in an individual fisherman's fishing permit. After analysing the Act and the Administration Act, her Honour concluded that determination of the conditions to be attached to an individual fisherman's fishing permit is not a function of AFMA. Rather it has, in its discretion, the power to determine such conditions when exercising its function to grant fishing permits pursuant to s. 32 of the Act. AFMA must exercise its discretion so that it pursues the objectives in s. 3 of the Act. Branson J rejected a submission that the objectives must be pursued in allocating quota as conditions of a fishing permit to an individual fisherman.

59. Applying this approach to the facts of Mr Wait's situation and in view of the views I have already expressed regarding AFMA's having complied with s. 3(1)(c) in formulating the plan of management in general and the system of quota allocation in particular, it follows that I do not need to have regard to s. 3(1)(c) in considering the conditions to which Mr Wait's fishing permit should be subject. His quota has been assessed on the basis of the catch.

60. Mr Wait's main concern is with the requirement that his catch history be verified and that reference to his logbooks alone is not sufficient. He is a commercial fisherman. Were commercial fishing activities to be viewed solely in the context of a fishermen fishing for shark within the limits of his or her licence (be it a Commonwealth or South Australian licence), it is possible to sympathise with Mr Wait's view. He had previously held a South Australian marine scale fish licence and fished in South Australian internal waters. All that was required of him by the South Australian authorities to prove his activities was production of the logbook he was required to maintain.

61. Commercial fishing cannot, however, be viewed in such a limited way. There are at least two wider frameworks within which it must be viewed. First, it is conducted in competition with other fishermen for a finite resource. As the resource is finite, it is managed by AFMA in accordance with the principles set out in the Act. In requiring verification of catch histories, regard has been paid to concerns expressed by fishermen that some falsify their logbooks. Verification of catch histories was important, therefore, to give fishermen confidence in the system of regulation introduced by AFMA and to ensure that allocation was fair to each of the fishermen.

62. The second framework within which commercial fishing must be viewed arises from its commercial nature. As a means by which commercial fishermen gain an income, there are automatically taxation considerations to which each needs to have regard. These arise quite independently of a fisherman's having held a South Australian marine scale fish licence or any other fishing licence. In general terms, s. 262A of the Income Tax Assessment Act 1936 requires that "... a person carrying on business must keep records that record and explain all transactions and other acts engaged in by the person that are relevant for any purpose of this Act" (s. 262A(1)). A "business" is defined to include "... any profession, trade, employment, vocation or calling, but does not include occupation as an employee" (s. 6(1)). The records that must be kept include any documents that are relevant for the purpose of ascertaining the fisherman's income and expenditure (s. 262A(2)(a)) and they must be kept to enable his or her liability under the Income Tax Assessment Act 1936 to be readily ascertained (s. 262A(3)(b)). Although there are exceptions requiring a longer period, a person is required to keep the records for five years after they were prepared or obtained or after completion of the transactions to which they relate (s. 262A(4)). The Income Tax Assessment Act 1997, which came into operation on 1 July, 1997, continues to require the records to be kept in this way (s. 3-10(1)).

63. In view of the business framework within which he operated, it is reasonable to expect that Mr Wait would have maintained and retained records to show his income and expenditure during the previous five years. This would mean that, when he lodged his claim for shark catch history on 14 February, 2001, he could be expected to have retained, for the purposes of his taxation responsibilities, records back to early 1996 being five years before that date.

64. Within the commercial fishing framework within which Mr Wait operated, it is reasonable to have some means whereby catches recorded in a logbook can be verified. That ensures fairness amongst all of the competitors in the industry and gives each some confidence that a competitor is not able to alter his or her share of a finite source by simply adjusting the entries in his or her logbook. While I accept Mr Wait's evidence that he is not such a fisherman and never has been and accept that his logbooks are accurate, there is no sound reason in his case for departing from the requirement that they be verified. In their memorandum to all shark fishers on 16 September, 1999, AFMA advised that generally fishermen must produce both primary verifiable documents and supporting documents. Although production of records of both types may be desirable, it would still be possible to ensure fairness among all fishermen if logbooks, which are described as supporting documents, could be verified by reference to other documents coming within the same category even if no primary verifiable documents were available. Supporting documents include documents of the type expected to be maintained for taxation purposes. Even given fluctuating prices, that documentation can be used together with the information in the logbooks to verify the catch.

65. It would seem that Mr Wait did not maintain or, if he did, retain a lot of records relating to the catch reflected in his logbook. His failure has not been caused by any circumstances that could be regarded as justifying his being treated differently from other fishermen who are expected to verify their catch histories. All that he is being asked to do is to produce records that it is reasonable to expect he would have maintained and retained.

66. Finally, I note that to allocate quota for an individual fisherman on a basis other than that of catch history means that it is not possible to maintain the relative economic position of those who were previously engaged in shark fishing in the various sectors of the Southern Shark Fishery. Relativities would be necessarily distorted if the TAC were to be maintained and Mr Wait were to be given a quota on the basis of his being able to earn a livelihood from shark fishing. In the circumstances of this case, I am not satisfied that there is any sound basis for doing so. Mr Wait's inability to verify his catch history because he has not kept records that he could reasonably be expected to have kept is not a factor that justifies a departure from the usual manner in which quota is determined.

67. The relativities among fishermen could certainly be maintained if the TAC were to be increased. Quite apart from questioning the appropriateness of that course, I note that the Tribunal does not have jurisdiction to review the TAC or the plan of management. It may consider whether the plan of management is consistent with the objectives in s. 3 of the Act in the context of reviewing those of AFMA's decisions that are relevant decisions within the meaning of s. 165(1) and that may, after review pursuant to s. 165(5), be reviewed by the Tribunal. Those decisions do not include a decision to set the TAC or to formulate the plan of management.

68. Having regard to all of these matters, I am not satisfied that there is a proper basis upon which Mr Wait's quota should be varied. Therefore, I affirm the decision of the respondent dated 20 July, 2001.

I certify that the sixty-eight preceding paragraphs are a true copy of the reasons for the decision herein of

Miss S A Forgie (Deputy President),

Signed: ..........................................................

Clancy Riddiford Associate

Dates of Hearing 22 January, 2002

Date of Decision 8 March, 2002

For the Applicant self represented

For the Respondent Mr Parkin, AFMA representative