Justice and Australian Fisheries Management Authority and Department of Fisheries Western Australia [2002] AATA 49 (30 January 2002)

Last Updated: 4 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 49

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2000/153

GENERAL ADMINISTRATIVE DIVISION )

Re CRAIG JUSTICE

Applicant

And AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Respondent Rty

And EXECUTIVE DIRECTOR, DEPARTMENT OF FISHERIES WESTERN AUSTRALIA Party Joined

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date 30 January 2002

Place Hobart

Decision The decision under review is affirmed.

.......(S'gd) B W Davis..........

Part-Time Member

CATCHWORDS

Fisheries - tuna and billfish - area restrictions on permit - line at 34^o south - policy - management plan - precautionary principle - objectives of Act - ecologically sustainable development (ESD) - impact on mandatory objectives - whether policy unlawful or unwarranted - impact on fishstocks - recreational fishing - bycatch - latent effort - localised depletion - economic considerations - whether cogent reasons for departure from policy.

Legislation

Fisheries Management Act 1991 (C'th)

Fisheries Administration Act 1992 (C'th)

Fisheries Legislation Amendment Act 1997 (C'th)

Fish Resources Management Act 1994 (WA)

Authorities

Re Jetopay Pty Ltd and Australian fisheries Management Authority (AFMA) (1994) 33 ALD 209

Australian Fisheries Management Authority v P W Adams Pty Ltd (1996) 61 FCR 314

Stoljarev v Australian Fisheries Management Authority (1996) 39 ALD 517

Bannister Quest Pty Ltd v Australian Fisheries Management Authority (1997) 77 FCR 503

Re O'May and Australian Fisheries Management Authority (1999) AATA 720

Re Dixon and Australian Fisheries Management Authority (2000) AATA 442

Ajka Pty Ltd v Australian Fisheries Management Authority (2000) AATA 258

Re Blank and Australian Fisheries Management Authority (2000) AATA 1027

Re Aston and Secretary, Department of Primary Industry (1986) 8 ALD 366

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577

Friends of Hinchinbrook Society Inc v Minister for Environment and Others (1997) 142 ALR 632

Metal Holdings Pty Ltd and Australian Securities Commission (1995) 37 ALD 131

Other Materials

Arrangement between the Commonwealth and State of Western Australia in relation to the fishery for fish and other aquatic biological resources in waters relevant to Western Australia (Commonwealth Gazette No GN4, 1 February 1995, at pp 353-365)

Fisheries Management Regulations 1992 (C'th)

Fisheries Levy Regulations 1999 (C'th)

REASONS FOR DECISION

30 January 2002 Associate Professor B W Davis AM (Part-time Member)

Application

1. Mr Craig Justice ("the applicant") manages a family fishing business in South Australia and has a number of other fishing interests in the South-East Non-Trawl Fishery (SENT) and the Southern and Western Tuna and Billfish Fishery (SWTBF), the latter being managed for him by FMS Pty Ltd.

2. The applicant seeks review of a decision made by a delegate of the respondent, Australian Fisheries Management Authority ("AFMA"), made under s165 of the Fisheries Management Act 1991 ("the Act") confirming the primary decision of another of AFMA's delegates, made under s32 of the Act, not to grant the applicant a 2000/2001 fishing permit for the SWTBF authorising the applicant to conduct fishing operations throughout the SWTBF, but instead to grant the applicant a fishing permit which only authorises fishing operations in the area of the SWTBF (off coasts of Western Australia and South Australia) south of latitude 34^o south.

3. The applicant seeks review by the AAT on a number of grounds, claiming that the 34^o south boundary is arbitrary, has no biological basis, does not meet AFMA's statutory objectives and is contrary to the implementation of efficient and cost-effective fisheries management. He seeks removal of the line.

Joinder Application

4. A written application to be joined as a party to proceedings was lodged by the Executive Director, Department of Fisheries, Western Australia on 10 September 2001. A number of grounds were stated, including the fact that Fisheries WA manages waters that overlap with waters for which AFMA has management authority. There were concerns relating to WA's recreational fisheries, aspects of bycatch, and concern about sustainability of fishstocks.

5. Counsel for the applicant, objected to Western Australia being made a party to proceedings, but s31(1) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") grants power to the Tribunal to determine whether the interests of a person are likely to be affected and whether they should be joined. Following a telephone conference hearing of all parties on 24 October 2001, the Tribunal made an order that the Executive Director of the Fisheries Department of Western Australia be joined as a party to proceedings.

Context of the Case

6. The SWTBF consists of those waters within the Australian Fisheries Zone (AFZ) around the Australian mainland from the Victorian - South Australian border, west, north and east to the tip of Cape York, Queensland i.e. all waters off the South Australian, Western Australia and Northern Territory coasts.

7. The respondent (AFMA) has responsibility for the management of tuna and billfish species throughout the AFZ under the Fisheries Management Act 1991 ("the FM Act").

8. There are six principal tuna and billfish species taken in the AFZ, the most valuable being southern bluefish tuna, which has been managed separately from other Australian tuna and billfish fisheries since the early 1980's. Each of the other five species, bigeye tuna, yellowfin tuna, albacore tuna, broadbill swordfish and skipjack tuna, is believed to comprise separate Indian Ocean and Pacific Ocean stocks. Pacific stocks are managed as part of the Eastern Tuna and Billfish Fishery (ETBF) and the Indian Ocean stocks are managed in the AFZ as part of the SWTBF.

9. Australia is a member of the Indian Ocean Tuna Commission (the IOTC) which was established pursuant to a multilateral agreement in March 1996. The IOTC is charged with promoting cooperation amongst member nations, but especially the conservation and optimum utilisation of tuna species, thus encouraging sustainable development of the species. Conservation and management measures are binding on members of the IOTC.

10. Before 1992, operators who were granted a Commonwealth fishing boat licence were entitled to fish in any Commonwealth fishery, but following passage of the Fisheries Management Act 1991, restricted to fishing for tuna and billfish using a specified fishing method or in specified waters. There were 13 areas, designated by reference to State and Territory borders and by reference to latitude and longitude. In early 1995 the CFBL's were converted to fishing permits issued under the FM Act.

11. In May 1995, AFMA announced the establishment of separate management advisory committees (MACS) for each of the western (WTMAC) and southern (STMAC) tuna and billfish fisheries. WTMAC would provide advice to AFMA on the management of tuna and billfish stocks north of latitude 34^oS to Cape York; STMAC would provide advice on tuna and billfish stocks south and east of latitude 34^o South to the South-Australia-Victoria border.

12. The STBF and WTBF are recognised as separate fisheries in Part 17 of the Fisheries Levy Regulations 1999 and in Part 2B of the Fisheries Management Regulations 1992.

13. In August 1998 the Chairman of the AFMA Board (Mr McColl) advised the Chairman of the then WTBFMAC that the Board had decided to remove all internal boundaries other than the boundary between the SWTBF at latitude 34^o South. In his letter Mr McColl also indicated that retention of the latitude 34^o South boundary might depend on a review of all tuna fisheries due to take place in early 1999.

14. Under cover of a letter dated 20 September 1999, a Discussion Paper on the Integration of the Australian Tuna Fisheries was forwarded to all permit holders and other interested persons seeking comment. Eleven submissions were received as response. The latitude 34^o South boundary was also discussed by the WTBFMAC, the majority of members favouring retention, although the AFMA member did not. AFMA management then prepared two briefing papers for the Board's consideration at its December 1999 meeting.

15. The AFMA Board decided at its meeting on 1-2 December 1999, among other things, to adopt recommendations made in the briefing papers, relating to the boundary at 34^o South. The Board decided "acknowledging the increase in investment and effort in the SWTBF in the past 12 months" to:

(a) "determine as a matter of urgency to develop and implement a management plan, that will effectively manage fishing effort, by early 2001;

(b) "retain the 34^o South boundary until that management plan is implemented; and

(c) that "when the management plan is implemented, the 34^o South boundary will be removed".

16. In December 1999 the AFMA Board decided to replace the STBFMAC and WTBFMAC with a single SWTBMAC and to treat stocks as a single fishery.

17. At present there are 124 SWTBF fishing permits, 90 authorise use of the longline method, 38 provide access only below the 34^o South boundary, 46 to the whole of the fishery and 6 above the 34^o South line only. While the member of longline permits has remained approximately the same over six years, the number being actually used has varied widely, but rising to 49 in year 2000. In that year only 9 of the 38 permits for areas below 34^o South were in use. However it should be noted there has been a significant rise in the number of days fished in the SWTBF, in the total catch of key species and in the prices being paid for fishing permits.

18. The IOTC has expressed concern about the state of the bigeye tuna stock and catches have continued to increase. The IOTC has also noted rapid development of longline fisheries targeting broadbill swordfish off both eastern and western Australia, with the impact of current levels of effort not known. It is considered that a continued increase of swordfish catches in the western Indian Ocean of the magnitude experienced in recent years is unlikely to be sustainable.

19. On 10 July 2000 AFMA circulated a discussion paper on future management options for the SWTBF and ETBF, in which the principal proposal was for Statutory Fishing Rights (SFRs), under which a total allowable catch (TAC) would be established and each operator be granted a tradeable portion of the TAC in the form of individual transferable quotas (ITQs). An independent Allocation Advisory Panel (AAP) would be set up to make recommendations to the Board on allocation of the ITQs. Following extensive consultation SWMAC strongly endorsed this proposal at its meeting on 28 February 2001.

20. The AFMA Board accepted the SWMAC recommendation at its meeting on 31 May 2001 and at its 10 -11 October 2001 meeting formally appointed the AAP, which is due to report back at the end of January 2002.

21. In the interim a Mr Stephen John Dixon, a principal of Fisheries Management Strategies Pty Ltd (FMS) had lodged an application for review by the AAT of conditions attached to a fishing permit 26083 for the year 1999-2000. Mr Dixon sought removal of a restriction preventing operators of the "Ocean Dawn" from fishing for tuna and other specified species by longline method, north of the 34^o south line. In other words he sought AFMA approval to remove the line and fish throughout the SWTBF. The AAT hearing was conducted by Senior Member Burton and after considering a wide range of evidence, decision was rendered on 5 June 2000 (see Dixon and Australian Fisheries Management Authority and Executive Director of Fisheries WA and Northern Territory of Australia (2000) AATA 442). The decision under review was affirmed. The matter is of relevance in the current case of Craig Justice, since virtually all parties made reference to the Dixon evidence and outcome.

AFMA's Legislative Objectives

22. Section 3 of the Fisheries Management Act 1991 sets out the objectives which must be pursued by AFMA in the performance of its functions. If provides:

"3. (1) the following objectives must be pursued by the Minister in the administration of this Act and by AFMA 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

...

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

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

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

3.(2) In addition to the objectives mentioned in subsection (1), or in section 78 of the Act, the Minister, AFMA and Joint Authorities are to 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."

23. The precautionary principle is defined in section 4 of the FM Act as having the same meaning as in clause 3.5.1 of the Intergovernmental Agreement on the Environment, a copy of which is set out in the Schedule to the National Environment Protection Council Act 1994. Clause 3.5.1 of that Schedule reads:

"Precautionary principle

Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

In the application of the precautionary principle, public and private decisions should be guided by:

careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and

an assessment of the risk-weighted consequences of various options."

24. Subsection 17 of the FM Act requires AFMA to consider the need to determine a plan of management in respect of each fishery under its control. It reads:

"Plans of management

17. (1) Subject to subsection (1A), AFMA must, in writing, after consultation with such persons engaged in fishing as appear to AFMA to be appropriate and after giving due consideration to any representations mentioned in subsection (3), determine plans of management for all fisheries.

17. (1A) If, in all the circumstances, AFMA is of the view that a plan of management is not warranted for a particular fishery, AFMA may make a determination accordingly, including in the determination its reasons for making the determination.

...

17. (2) Before determining a plan of management for a fishery, AFMA must prepare a draft of the plan, and by public notice:

(a) state that it intends to determine a plan of management in respect of the fishery; and

(b) invite interested persons to make presentations in connection with the draft plan by a date specified in the notice, not less than one month after the date of publication of the notice in the Gazette; and

(c) specify:

(i) an address from which copies of the draft plan may be obtained; and (ii) an address to which representations may be forwarded.

17. (2A) In addition to issuing a public notice under subsection (2) and before determining a plan of management for a fishery, AFMA must notify the persons and organisations listed in the register established under section 17A, at their addresses as shown on the register, of the terms of the public notice."

25. In pursuing these statutory objectives AFMA is required to carry out a variety of functions specified in other sections of the Fisheries Management Act 1991. These have been summarised by Drummond J in Bannister Quest at pp508-509. The functions include preparation of management plans for a fishery (s17(1) of the FM Act), the power to grant statutory fishing rights in managed fisheries (ss17(6)(b), 21, 22 and 31 of the FM Act) authorise the use of a specified Australian boat by a person for fishing in a specified fishing (s32(1)), specify the conditions to be attached to such a permit (s32(6)), the permit conditions as to the fish that may be taken, the quantity, the rate at which the fishing may be taken and the methods or equipment that may be used (s32(7)), and the power to impose, or vary or revoke conditions on fishing permits (s32(8)).

26. It is also one of AFMA's functions under the Fisheries Administration Act (FAA) "... to consult and cooperate, with the industry and members of the public generally, in relation to ..." its activities (s7(c)). The consultation process requires AFMA to consult with persons or bodies representative of the whole or part of the fishing industry, with the Commonwealth and State governments and their authorities having functions relating to fisheries and also with persons (including members of the scientific community) having a particular interest in matters associated with the industry "... for the purpose of considering any matter, or obtaining information or advice, relating to the performance of its functions" (s9 of the FA Act). AFMA is also authorised to establish Management Advisory Committees ("MACS") to "... assist it in the performance of its functions and the exercise of its powers in relation to a fishery" (ss55 and 56 of the FA Act).

27. The bare recital of these objectives and functions masks the reality of translating them into policies, principles and operational administration of the Act. Given that multiple functions are involved, tradeoffs are inevitable in AFMA's decision-making.

The applicant's contentions

28. The applicant filed a statement of facts and contentions on 4 July 2001. A substantial number of claims were made, as restated below:

"(a) The applicant contends that the 34^o boundary is arbitrary, has no biological basis, does not contribute to AFMA's objective of ecologically sustainable development, restricts economic efficiency, is contrary to the implementation of efficient and cost-effective fisheries management and is therefore inconsistent with the pursuit of AFMA's legislative objectives.

(b) The applicant further contends that AFMA's policy of retaining the 34^o boundary pending future events (the introduction of a management plan) is unsustainable and inappropriate. In the absence of a full management plan, AFMA is required to make decisions about fishing permits and conditions on those permits in a manner which is consistent with its legislative objectives by having regard to the issues of ecologically sustainable development, economic efficiency and efficient and cost effective fisheries management.

(c) The applicant further contends that "the exercise of a precautionary approach" or the lack of a management plan do not operate to justify AFMA applying a fundamentally flawed policy nor does it operate to enable AFMA to avoid exercising its statutory powers to implement "efficient and cost-effective fisheries management on behalf of the Commonwealth".

(d) The applicant further contends that the restriction plays no role in the implementation of a management plan and is therefore not a measure that can be seen to pursue all of AFMA's legislative objectives.

(e) The applicant also contends that the boundary is and will continue to hinder the implementation of a management plan.

(f) In the event that the Tribunal holds that AFMA's policy is unsustainable, the applicant contends that the condition on his permit which prevents him operating above the 34^o S boundary should be removed.

(g) In the event that the Tribunal holds that AFMA's policy is consistent with the pursuit of AFMA's legislative objectives and is capable of being applied to the applicant's case, the applicant contends that the Tribunal is nevertheless required to decide this matter consistently with the objectives of the Fisheries Management Act and is required to have regard to a range of issues in addition to the policy. In particular, the applicant contends that the removal of the condition from his licence would further the objectives of the Fisheries Management Act in that it would maximise economic efficiency in the exploitation of fisheries resources and would be consistent with ecologically sustainable development and implementing efficient and cost-effective fisheries management.

(h) The applicant further contends that if the respondent deems it necessary to limit effort in the fishery at this time the current "interim" measures are inadequate and bias. If the concerns expressed by AFMA regarding latent effort are real, the respondent is in breach of its statutory duties by not acting to curb investment throughout fishery.

(i) The applicant further contends that the AFMA policy is inconsistent with the governments National Competitions Policy.

(j) In the event that the Tribunal holds that AFMA's policy is consistent with the pursuit of AFMA's legislative objectives and is capable of being applied to the applicant's case, the applicant contends that the applicant's special circumstances in respect of his permit are such that the policy should not be applied to impose a condition on his permit that he cannot operate north of the 34^o S boundary. In particular, the special circumstances which apply to the applicant are:

(i) the applicant has made considerable investment in the SWTBF with the 34^o S in place; and

(ii) the applicant holds a permit to operate only south of the 34^o S boundary. Permit holders with access north of the line are offering the free use of their permits (under the assumption each history will play a significant role in allocation). This would require the applicant, when fishing close to the line, to return to port, gain approval to change permits and return to sea each time he needs to cross the boundary. Alternatively the applicant could fish throughout the fishery utilising someone else's permit; and

(iii) the actions of AFMA in both this and other fisheries have led to a legitimate expectation that the line would be removed; and

(iv) AFMA have issued no investment warnings in the fishery or even indicated to owners of permits restricted by the boundary that AFMA does not want them to activate their permits; and

(v) other stakeholders who have actively supported the boundaries are being given an unfair advantage in the development of the fishery."

Respondent's contentions

29. In response to the above, AFMA made a number of claims which may be summarised as follows:

"(a) Management of the SWTBF must be guided by the statutory objectives expressed in s3(1) of the FM Act, as amplified by the objectives in s3(2).

(b) Until a management plan is developed and implemented, a quasi-legislative process requiring a number of steps, the SWTBF must be managed and statutory objectives pursued by fishing permits under s32 of the Act, with conditions attached.

(c) The principal difficulties to be overcome include:

* inadequate knowledge of the resource base

* a management framework which is limited in ability to constrain effort and catches

* the need to pursue ESD, bearing in mind the precautionary principle

* the extent to which unconstrained increase in investment and fishing effort reduces the economic efficiency of the stocks as a whole.

(d) Such uncertainties lead to diverse scenarios, where impacts on a particular specie within the AFZ must be weighed against implications for the Indian Ocean stocks as a whole.

(e) The current 34^o south boundary between the STBF and WTBF plays a significant role in restraining additional investment and effort in the fishery.

(f) If the AAT were presented with a clean slate and given the task of developing an effective management regime, it is probable that the 34^o south boundary would not be part of that regime.

(g) The challenge is to devise a means of restraining effort and investment while encouraging the exploitation of fisheries resources and maximising economic efficiency, as well as keeping the costs of fisheries management to a minimum.

(h) In view of the uncertainty about stock structure of the key tuna and billfish species, the precautionary approach to management dictates that AFMA should take a stance by limiting the growth of effort and catches, at least until research permits putting a more effective management regime in place.

(i) There is considerable concern about latent effort in the fishery and recent significant increases in investment. Removing the 34^o south boundary would increase the rate of activation and place the existing management regime under stress.

(j) Development of a management plan is a protracted and complex process, requiring extensive consultation with the fishing industry, other government agencies, conservation groups and State and Territory governments.

(k) Removing the boundary would introduce a degree of instability into the fishery, with increases in fishing effort leading to tension within the industry and pressure for imposition of new constraints on operators. That tension and pressure would impede the effective development of a management plan."

Contentions of the Third Party

30. In seeking to be joined as a party to proceedings the Executive Director of the Department of Fisheries, Western Australia, drew attention to similarities and differences between the statutory objectives of AFMA and Fisheries WA.

31. The objectives of the WA Fish Resources Management Act 1994 are set out in section 3 of that Act as follows:

"3(1) The objects of the Act are to conserve, develop and share the fish resources of the State for the benefit of present and future generations.

(2) In particular, the Act has the following objects:

(a) to conserve fish and to protect their environment;

(b) to ensure that the exploitation of fish resources is carried out in a sustainable manner;

(c) to enable the management of fishing, aquaculture and associated industries and aquatic ecotourism;

(d) to foster the development of commercial and recreational fishing and aquaculture;

(e) to achieve the optimum economic, social and other benefits from the use of fish resources;

(f) to enable the allocation of fish resources between users of the resources;

(g) to provide for the control of foreign interests in fishing, aquaculture and associated industries;

(h) to enable the management of fish habitat protection areas and the Abrolhas Islands reserve."

32. Fisheries WA is the manager of waters that overlap with waters in which AFMA have management authority. The granting of any permits by AFMA that authorise fishing in WA waters affect Fisheries WA's management interests as well as the fishstocks involved. AFMA and Fisheries WA have distinct and to some extent conflicting or complementary interests, although the two bodies have a general commonality of interest.

33. The primary concern of the third party in the Justice matter relates to potential impacts on recreational fisheries, bycatch and sustainability of fishstocks within West Australian waters. This concern also extends to Indian Ocean fishstocks within the jurisdiction of the IOTC.

Scope of the Tribunal's Consideration

34. This review is concerned with conditions attached to Mr Craig Justice's fishing permit number 26085 for the year 2000-2001. The permit does not permit him to conduct fishing operations throughout the SWTBF, but only authorises fishing operations in the SWTBF south of latitude 34^o south. He seeks removal of that restriction i.e. removal of the line. But any consideration of whether AFMA's decision is the correct and preferable decision requires consideration of the lawfulness and reasonableness of the policy itself and consideration of the circumstances surrounding the decision as it relates to Mr Justice. There is also the issue of implications for other parties and the fishery itself.

35. AFMA is charged with the duty to formulate policy in accordance with its statutory objectives and processes. The Tribunal should apply lawful policy "unless there are cogent reasons to the contrary" (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 645). It must have good reasons in the particular case to depart from that policy, or to make an exception in the application of policy properly made in accordance with AFMA's statutory powers.

36. In the case of Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366, the Tribunal presided over by Justice Davies made the following observation:

"... the function of this Tribunal is to make a decision in the particular case taking into account all relevant considerations, including any policy which has been enunciated by the primary decision-maker. The weight to be given to policy will vary according to the circumstances in which the policy was developed and the appropriateness of its application to the case on hand."

37. There is no onus of proof on the parties. The Tribunal must be satisfied on the evidence and material before it that the policy underlying the decision is unlawful, or there are cogent reasons to depart from it, before the Tribunal can set the decision aside.

The Issues

38. Whether AFMA's policy to retain the line as a fishing boundary on the permit is unlawful, or not warranted in the light of its legislative objectives, requires consideration of current knowledge of the fishstocks in the fishery and the wider Indian Ocean stock, and any concerns about overall sustainability. In order to establish such parameters a range of other issues must be examined, including the question of whether the effect of retaining the line is likely to constrain effort and investment in the fishery, possibilities of latent effort being activated, and the need to meet Australia's international obligations.

39. There is also the question of whether removal of the boundary would threaten pursuit of AFMA's statutory objectives, including ecological sustainable development (ESD). The latter also involves consideration of whether the precautionary principle might be triggered by some threshold test. The implications of retaining the line must also be assessed in terms of whether it induces economic inefficiencies in the fishery in the short-term until a management plan is established. If the policy is found to be lawful, it must also be determined whether there are cogent reasons for departing from the decision under review.

The Hearing

40. Hearing of the case was conducted in Hobart from Monday 10 December to Thursday 13 December 2001 inclusive.

Mr Robert Fish of Fisheries Management Strategies Pty Ltd (FMS) appeared as counsel for the applicant Mr Craig Justice.

Mr Tom Hanks QC appeared for the respondent AFMA, instructed by Mr Justin Hyland from the Australian Government Solicitors Office.

Ms Caroline Thatcher appeared for the party joined, the Executive Director, Department of Fisheries, Western Australia.

Evidence

41. Mr Fish tabled and spoke to an opening submission outlining the principal contentions of the applicant, but making some supplementary points. In particular he claimed retention of the 34^o south line was merely intended to limit the rate of activation of permits and investment, which was inconsistent with AFMA's statutory objective of achieving economic efficiency through active competition. Reasons for retaining the boundary had changed considerably over time and it was an impediment rather than a facilitator of development of a management plan for the fishery.

42. Mr Craig Justice was then affirmed and submitted a witness statement detailing his involvement in various fisheries, including the SWTBF. His investments in the latter are managed by FMS Pty Ltd. Under cross-examination he indicated he was entering into purchase of an additional vessel, left most management decisions to Mr Stephen Dixon of FMS, fishing permit 26085 was currently inactive and he did not have any active interest in any vessel presently operating in the SWTBF.

43. Mr Stephen Dixon was then sworn and gave evidence of his involvement in a number if fishing ventures, both in the ETBF and SWTBF, noting that although permit 26085 was currently inactive, it had a substantial prior catch history in the SWTBF. He informed the hearing he had acted in an advisory and management role for a number of permit holders. He considered there were some in the industry trying to delay introduction of a management plan in the SWTBF, but regarded it was essential for good management of that fishery. What he sought was removal of inefficient restrictions, including the 34^o south boundary.

44. Under questioning he stated he had bought and sold permits, but believed in retaining permits when management plans were being introduced, since their value then increased. He claimed the value of restricted and unrestricted permits had moved closer in recent times, but not yet reached parity, it was dependent upon perception of opportunity. He was questioned about shark finning, an illegal operation, stating it was known to occur primarily on vessels fishing the continental shelf, whereas tuna boats tended to operate further offshore. He considered the certainty provided by a management plan was likely to improve the value and profitability of fishing permits overall.

45. Mr Fish then re-examined the witness, who claimed existence of the boundary at 34^o south added to AFMA's administrative costs as well as the cost to operators involved. He noted that although AFMA now managed the stock as a single species, some distinction had to be made between the AFZ and the Indian Ocean as a whole.

46. Mr David Collins, a fisheries economist, gave evidence claiming amongst other things, that removal of the line would not have much impact on capitalisation or effort in the SWTBF fishery. Counsel for the joined party queried why if this was so, great effort was being expended in the AAT to ensure elimination of the line. Mr Collins responded he was not in a position to comment on this question.

47. The first witness for the respondent was Mr Andree McNee, Senior Manager, Tuna and Billfish Fisheries, AFMA, who had taken up duties in July 2000. His affidavit dated 13 November 2001 dealt with AFMA's policy in the SWTBF and significant developments in the fishery since March 2000, plus some comment on recent international developments. In evidence he noted the protracted multi-stage consultative process involved in developing a management plan and stressed AFMA had been dealing with a number of issues in the ETBF, as well as other fisheries regimes simultaneously. In discussing the role of the recently established Allocation Advisory Panel (AAP) for the SWTBF, he pointed out this involved consultation with a range of interests about terms of reference and a review and appeal process once preliminary catch allocations had been decided. Although progress on the draft management plan was being achieved, it was unlikely a complete version would be available for comment prior to July 2002 at earliest and then have to undergo the specified statutory process in order to finalise it, a potentially time-consuming operation.

48. In cross-examination, counsel for the applicant queried why it was all taking so long, when the intention to prepare a management plan and remove the 34^o south boundary had been advised in 1996. He also wanted to know if some industry participants were intent on delaying the process. Mr McNee responded that the opinions of operators and other interests were carefully noted by AFMA, but this did not mean they were always adopted. He again emphasised the commitment to wide consultation, not just with the advisory MACS and industry, but also State governments. A significant work program was involved, with AFMA having to deal with a wide range of issues and objectives in a number of fisheries simultaneously.

49. Mr McNee agreed that the 34^o south boundary was not an optimum means of attempting to limit capitalisation and fishing effort, but it did constitute a useful mechanism at this stage of development of the management plan. If the line was suddenly removed it would cause confusion in the industry and probably delay completion of the plan and its implementation.

50. Counsel for the applicant asked why AFMA regarded the line as useful, when the outcome of the Dixon case indicated removal of the line was likely to have little impact on capitalisation and effort, which were likely to increase anyway. Mr McNee responded that any overcapitalisation led to pressure to exploit the resource, which was not conclusive to ecologically sustainable development (ESD). He agreed that if a management measure proved ineffective it should be removed, but there needed to be a reason to do so and the timing must permit consideration of implications and any actions required to facilitate or complement it. AFMA had made it clear retention of the 34^o south boundary was an interim measure, but it would not be removed until a management plan was in place and fully operational.

51. Mr McNee was further questioned about the capacity of permit conditions or restrictions to limit activation within a fishery. Mr McNee agreed it was uncertain, but decisions about permits had to be made each year on the basis of available information and it was then a judgment of the owner to either activate the permit or not. A market existed and operators made decisions according to a wide range of factors.

52. Mr McNee agreed that some of AFMA's policy decisions might from time to time cut across National Competition Policy (NCP), but the performance of the agency was monitored overall in this regard. With respect to byecatch issues and shark finning, AFMA was well aware of the problems involved, but monitoring and compliance were not always easy to achieve. Further information was being sought and it was hoped safeguards would be incorporated into the SWTBF management plan.

53. AFMA's second witness was Mr John Gunn, a Principal Research Scientist at CSIRO Marine Research Division in Hobart, his specialities being pelagic fisheries and ecosystem management. His witness statement focussed on concerns about bigeye tuna stocks and swordfish in the SWTBF and Indian Ocean generally, including a recent IOTC working paper on tropical tuna (June 2001). In evidence he described the general lifestyle in fisheries, from initial discovery through rapid exploitation to over-capacity and over-fishing, such that crisis management and regulation had to occur. He stressed the importance of a precautionary approach, because of lack of knowledge about stock dynamics and the tendency to only find out what the optimum yield might be, when one had gone beyond maximum sustainable catch limits. He considered there were different levels of a precautionary approach which could be applied at particular levels of management.

54. Mr Gunn noted IOTC concerns about the rate of depletion of bigeye tuna and swordfish stocks in the Indian Ocean and although Australian fisheries were only a limited part of this, argued local depletion even within the SWTBF was possible. The 34^o south line was merely one of a suite of issues AFMA would have to address. He considered the limited number of permits which had been activated within the SWTBF was a clear indication retention of the line was acting as a disincentive, but this could change according to perceptions of opportunity, a belief catch histories might become important in quota allocation, or a move to larger vessels if offshore effort was considered profitable.

55. He was questioned about the precautionary principle and the trigger point or threshold at which might be invoked. Mr Gunn stated there was a distinction between a cautious approach in a policy or management plan, different from a scientific risk of threats of serious or irreversible damage to fishstocks, the latter requiring active regulation. Bigeye tuna and swordfish had been shown to be susceptible to overfishing in a number of the world's oceans, including the Indian Ocean, and the IOTC was contemplating how this might be prevented or mitigated. He considered removal of the 34^o south line would induce activation of effort, potentially a rapid increase in the number of hooks set, and the number of fish caught or killed as bycatch. His advice would be to adopt a precautionary approach rather than invoke drastic regulation immediately. He did not purport to be an expert in shark species or fishery economics, he would leave that to others, however such factors needed to be considered as did Australia's obligations within the IOTC.

56. Mr Gunn was then questioned about aspects of local depletion, bycatch and the age distribution of fishstocks. He responded that although a considerable amount was known about bluefin tuna, information on other species was more limited, including age distribution and stock recruitment. One would also have to take into account fishing capacity and effort, prospects of further activation, and trends in catch rates which might indicate prospective local depletion. While tuna and billfish were often managed as a single species, the variety of fish did vary in particular locations and the impact of recreational fishermen as much as commercial operators had to be considered. Experience in the ETBF showed that adaptive management was required, as errors in assessment had to be corrected. Many complex variables were involved and judgments had to be made on the basis of experience and data limitations.

57. AFMA's final witness was Mr Gerald Geen, a consultant fisheries economist, living in Kiama, NSW. His witness statement dealt with the question of whether the line at 34^o south imposed short-term or long-term inefficiencies on operators in the SWTBF. He used AFMA data for the period 1997-2001, for three sets of permit holders, those holding southern-only permits, those holding western-only permits and those permitted to fish throughout the SWTBF. Performance assessments were based on number of days fished, average number of hooks set, average catches of particular species and the average price received. He concluded that the line at 34^o south did restrict the catch of southern-only operators, the primary source of inefficiency being profits foregone because they could not fish the entire SWTBF. He estimated this sum as around $192,000 per year per southern-only operator. He did not believe the line itself increased operational costs - it was merely that more effort was required.

58. Under questioning it became apparent these conclusions could be queried, because the data was limited to days fished, rather than complete costs for days at sea, moreover there was potential for debate about the average price per unit of catch assumed in calculations. Mr Geen agreed that if the input data was not accurate, his assessment could be queried.

59. The final two witnesses were called by telephone conference on behalf of the joined party, the Executive Director of Fisheries WA. Dr Julian Jeffrey Pepperell is a fisheries consultant and marine science consultant based in Doomben, Queensland; Dr Rodney Lenanton is currently supervising scientist, finish, in the research division of the Department of Fisheries, Western Australia.

60. Dr Pepperell's witness statement and evidence focussed primarily on game fish and recreational fisheries, but with supplementary attention to bycatch, especially sharks. He concurred with the views of Mr Gunn that knowledge of billfish in the Indian Ocean was limited, hence a precautionary approach was advisable, but remained more concerned about the risk of local depletion in WA waters than overall sustainability of some fishstocks in the Indian Ocean as a whole. He noted that a licensing system for gamefish charter boats had been introduced by the WA government, this was a reflection of the significant economic value of the recreational fishing industry, but the latter could be threatened if rapid expansion of commercial operations occurred, if the current 34^o south boundary was removed without a management plan in place.

61. He favoured maintaining a catch and release program for peak gamefish species, such as marlin and swordfish, since they were crucial in biodynamics of the fishery as a whole. He admitted there was only limited information available about the mortality rates for gamefish and sharks arising from catch and release, as well as bycatch. Under questioning, he agreed that the enormous increase in longline hooks between 1998 and year 2000 (from 1 million in 1998 to 5.6 million in 2000) was evidence latent effort could be rapidly mobilised if permit-holders thought profitability existed. He again emphasised that local depletion was an issue that should be considered in fisheries policy.

62. Dr Lenanton's evidence mainly related to various shark species and concerns about the relationship between sharks taken as bycatch in the tuna fisheries and sharks taken in domestic fisheries. Dr Lenanton indicated each species had different characteristics, but the essential point was that some moved south to have their pups and this tended to occur near or on the continental shelf around 33^o south and longitude 116 east i.e. within the area of the SWTBF now under consideration. Fishermen tended to target the juveniles, since they commanded a better price. As many sharks were long-lived, any depletion of the breeding stock took a long time to correct. It was equally important to retain some of the mature apex predators, because their predation maintained biodiversity; taking more than 4 percent annual of the adults would drive the population down. This reinforced the need for a precautionary approach and regulation to avoid overfishing. It was vital that ny management plan for the SWTBF deal with the issue of shark bycatch and existing controls should not be removed until the implications were clear.

Closing Submissions

63. In concluding submissions Mr Fish for the applicant argued that the Dixon determination proved the 34^o south line was an ineffective management control and there was a resulting expectation the line would be removed. AFMA had admitted the boundary was not consistent with its legislative objectives in the long-term and the target specie being highly migratory, the boundary had no biological significance. Policy formation was flawed and driven by political pressure. The boundary did not limit latent effort and would slow development of a management plan, by continuing current uncertainty.

64. Mr Tom Hanks QC for the respondent queried the above, pointing out that little was known about the key target species in the SWTBF, according to witnesses in the Dixon case and also scientific evidence in the current case. There were parallels with experience in the ETBF and the AFMA Board had made it clear retention of the 34^o south line was an interim measure, pending implementation of the management plan. There was a danger latent effort would be activated, putting pressure on stocks. The Board had given due regard to statutory objectives and consultative processes in making policy decisions and such carefully devised provisions should not be lightly overturned. While retention of the line was an interim inefficiency in the fishery, it could curb over-investment and intensified effort, hence a precautionary approach was desirable and continue to be adopted at present. The preferable course of action is to retain the line until the management plan is finalised and implemented. National competition policy could not displace AFMA's statutory objectives and the applicant had not demonstrated any special circumstances applied which would necessitate intervention and policy change.

65. Ms Caroline Thatcher for the Executive Director of Fisheries, WA (the joined party) focussed on issues relating to recreational fisheries, the biological and legal significance of the line, and bycatch, as well as the individual circumstances of the applicant. Her principal argument was that the legislative framework of the Fish Resource Management Act 1994 (WA) should be considered, as much as the Fisheries Management Act 1991 (Cth). Both provided an appropriate statutory framework for considering objectives and principles aimed at ecologically sustainable development and application of the precautionary principle. There was considerable concern about latent effort in the SWTBF and its likely activation, if the current 34^o south boundary was removed prior to a management plan. The line did have some biological significance for certain species and could cause increased bycatch of shark, marlin and swordfish if effort became unconstrained. Localised depletion was possible and this would impact on WA's recreational fisheries. The existing line should be retained pending complete implementation of a management plan. The objectives of the Fisheries Management Act 1991 (Cth) were to protect the long-term economic viability of the industry as a whole and not particular individual operators.

Analysis

66. Whatever may have gone before, the role of the Tribunal is to stand in the shoes of the decision-maker and make the correct or preferable decision based upon statutory provisions, extant policy, case precedent (where appropriate) and all evidence of relevance in the case under consideration.

AFMA's Policy in the SWTBF

67. There is nothing in the documentation and hearings evidence before the Tribunal to indicate AFMA has acted in an arbitrary, inconsistent or incorrect manner in dealing with policy issues in the SWTBF. Early notice was given in August 1998 of the intention to review removal of the 34^o south line, subject to a review of all tuna fisheries due to take place in early 1999. A discussion paper was then forwarded to all permit holders and other interested persons in September 1999, dealing with several matters, including the 34^o south line, and seeking their response. By this time Mr Gunn of CSIRO and some other parties were expressing concern about activation of fishing effort north and south of the line and Mr Dixon had initiated action in the AAT to have the line removed. Management advice provided to the AFMA Board in early December 1999, not only included a recommendation from WTMAC favouring retention of the line, but examined a number of options, including its prospective removal. All were viewed in the context of industry change and relationship with AFMA's statutory objectives.

68. The Board's decision, reached at its meeting on 1-2 December 1999, was to adopt a precautionary approach and take the following actions:

(a) develop and implement a management plan that would effectively manage fishing effort by early 2001;

(b) retain the 34^o south boundary until the management plan was implemented; and

(c) when the management plan was implemented, remove the boundary.

It is clear that all permit-holders operating in the fishery from year 2000 onwards must have been aware of this situation. This did not prevent Mr Dixon challenging the policy in the AAT in mid 2000, but the Tribunal ruled it was lawful and the line has remained since, now being challenged by Mr Craig Justice.

69. Examining the evidence to date, the Tribunal concludes that whatever the outcome of the current appeal, AFMA has followed due process in a very consultative manner, hence policy is well grounded and interested parties cannot complain of lack of natural justice. Policy development has not been arbitrary, but formulated using well established procedures, permitting all industry participants to have a voice.

Timing of the Management Plan

70. There appears to be common ground amongst parties to these proceedings that preparation and implementation of a management plan for the SWTBF has and is taking far longer than initially envisaged. AFMA appears to have been unduly optimistic in believing that a decision made in late 1999 could be translated into a management plan twelve months later in early 2001, even if evidence in the Dixon case indicates they were warned a longer time was likely. The Tribunal can well understand the frustration permit-holders have when legitimate expectations are not realised, however it must be said in AFMA's defence that they have repeatedly emphasised they are statutorily required to carry out a comprehensive consultative process involving the industry, advisory MACs and Statement governments, as well as deal with a number of other fisheries simultaneously. There is nothing in evidence other than to suggest AFMA is anxious to develop a management plan as rapidly as possible, but also must analyse any implications of implementation. To some extent the timeframe is out of AFMA's hands, since both the plan and its prospective outcomes such as ITQs, must undergo a review and appeal process before being finalised.

Fish Stock Concerns

71. Consideration of Mr Justice's contentions requires an examination of the fishery in the context of AFMA's statutory objectives and prospective implications of removal of the line. Scientists appear agreed that total catches in the SWTBF (of the order of 700 tonnes in 1998) are small relative to the Indian Ocean as a whole (1.168 million tonnes in 1997), nonetheless there appear to be concerns at the international level about likely rates of depletion of particular species (eg bigeye tuna and swordfish) and concerns at the AFZ national level about prospects of local depletion and bycatch of gamefish and sharks. Overall the scientific evidence presented to the Tribunal reveals limited knowledge of some fishstocks at present, but urges a precautionary approach until better information becomes available and effective management plans are in place.

72. Counsel for the applicant argued that the line at 34^o south did not constitute a biological boundary, was not effective in constraining fishing effort or new investment and ought to be removed, since it inhibited economic efficiency. But evidence from Dr Gunn, Dr Pepperell and Dr Lenanton tend to challenge these assumptions. While AFMA have never regarded the line as a biological or fishing boundary, acknowledging its existence arises from historic management considerations, there is scientific information indicating it is a de facto divide between species mainly inhabiting subtropical waters, compared with cooler southern waters. Dr Lenanton brought out this point with respect to shark species, while Dr Pepperell was more concerned about prospects of local depletion or increased bycatch if the line was quickly removed without other management controls being in place. Although there was no conclusive evidence, witnesses believed some illegal shark finning still took place and suggested that figures on bycatch probably under-estimated its impact, since not all details were recorded or reported.

73. Counsel and witnesses for the joined party (Department of Fisheries, WA) emphasised the economic value and importance of recreational gamefishing in Western Australia. While they regarded catch and release programs as useful in ensuring both availability of fish and peak predation within biodiversity processes, there was concern that mortality figures for catch and release and bycatch were not and could not be fully known. Each species, whether tuna, marlin or swordfish had its own characteristics, but any rapid increase in fishing capacity and effort could have severe local impacts, probably only being discovered when a near depletion occurred. Some species had long lifespans and recruitment was slow. All of this constituted a case of adaptive but cautionary management.

Latent Effort and Activation

74. There was not complete agreement as to whether retention of the line acted as a disincentive or latent effort would be activated if the line was removed. Mr Collins claimed removal of the line would have little impact on capitalisation or effort in the SWTBF, but Mr McNee of AFMA viewed it as a useful interim control at this stage of development of the management plan, while admitting it was not an optimum means of attempting to limit capitalisation and fishing effort, since both were likely to increase anyway. Mr McNee also indicated that permit conditions had to be decided on a yearly basis, using available information, and it was then a judgment of the owner to activate it or not. Numerous factors were involved.

75. Mr Gunn considered that the current low rate of activation in the SWTBF was an indicator the line did not act as a disincentive, but evidence by Dr Pepperall about an enormous increase in longline hook numbers between 1998 and 2000, was proof latent effort could be quickly activated if permit-holders thought profitability existed. Mr Geen had attempted to calculate whether the line did act as a short-term inefficiency, in terms of profit foregone by restrictions on southern-only operators. Unfortunately his results could be questioned, because of doubts about some of the input data involved.

Is Retention of the Line in Pursuit of the ESD Objective?

76. Here the judgement is dependent upon the timeframe selected. In the short term the applicant is probably correct in viewing retention of the line as a constraint upon his opportunity to engage in free competition. But if the line is removed there is no guarantee he would do as well or better than his current situation, as latent effort could be activated and more competitors arrive. In any event AFMA is charged with the overall long term economic benefit of the industry as a whole and not an individual operator.

77. But all of the above ignores potential impacts on fishstocks and the feasibility of pursuing ecologically sustainable development, which is an equally important statutory objective. Mr Gunn drew some distinction between a precautionary approach at the policy and management plan level and a more severe scientific test in deciding whether a threshold has been reached were serious or irreversible damage is being caused to fishstocks, necessitating urgent and severe restriction. In the current case no-one is suggesting the latter point has been reached, but all are suggesting a careful evaluation to avoid such a predicament, through an assessment of the risk-weighted consequences of various options. This is precisely what the precautionary principle is all about.

78. AFMA admits retention of the line is not an ideal means of constraining investment and catch effort, but what it does argue is that the line is a useful interim measure, to be removed as soon as more effective management arrangements are in place. Retention of the line is not in the long-term interests of the ESD objective and this is why it ultimately will be removed.

Does Retention of the Line Impinge upon Economic Efficiency Objectives?

79. This has to some extent already been answered. The applicant contends and AFMA does not disagree, that interim retention of the line has some economic inefficiencies, but these must be weighed against the prospect of over-investment and rapid increases in activation or effort if the line is rapidly removed. Over-capitalisation of a fishery is certainly inconsistent with the first three of AFMA's mandatory objectives - the implementation of an effective and cost-effective fishery; conducting activities in a manner consistent with ESD principles; and maximising economic efficiency in the exploitation of the resources of a fishery. Having weighed its options AFMA was prepared to countenance short-term inefficiencies, rather than put at risk the long-term viability of the industry. It follows AFMA did not avoid its statutory duty to pursue an overall economic efficiency objective.

Is the policy unlawful for other reasons?

80. The list of contentions made on the applicant's behalf have many elements, including claims that AFMA operates 'a fundamentally flawed policy', restriction should play no part in implementation of a management plan, the current interim measures are inadequate and bias, other stakeholders have been given unfair advantage and that special circumstances apply to the applicant. Regardless of the merit or otherwise of these arguments, which are dealt with in the next section of this determination, no evidence has been produced which would indicate that any of them have been vindicated and clearly contravene the intent or provisions of the Fisheries Management Act 1991 and other legislation governing AFMA's operations.

Are there cogent reasons for depart from the policy?

81. Considering the totality of the evidence and submissions put on behalf of Mr Justice, there do not appear to be compelling or cogent reasons for departing from extant policy, which has been made by the AFMA Board, a statutory body acting in accordance with its statutory powers. Whether such a policy can be justified in future is another matter not to be considered now, when the Tribunal must make a determination based on the totality of evidence currently before it.

Response to the applicant's contentions

82. It is now appropriate for a response to be given to each of the numerous contentions the applicant has raised.

83. A claim that the boundary is arbitrary, has no biological basis, does not contribute to ESD and is contrary to efficient and cost-effective management.

Response: There is clear documentary evidence the boundary was a conscious policy choice, even if initially an administrative convenience. Scientific evidence exists that it has some limited biological significance as a boundary between sub-tropical and cooler waters and their associated species. This is not in itself a definitive reason for retaining it. It does contribute to ESD if it has a tendency to act as a disincentive to overcapitalisation, but it does not restrict effort. Retention does create some short-term inefficiencies, but this is an interim impact relative to longer term benefits once a management plan is in place.

84. Retaining the boundary pending future events is unsustainable and inappropriate.

Response: AFMA is required to make decisions on permits and conditions on the basis of information available to it year by year; in each case AFMA's statutory objectives are considered, as evidence by Mr McNee and others has indicated.

85. Exercise of the precautionary principle or lack of a management plan do not justify application of a fundamentally flawed principle.

Response: AFMA and scientific experts have argued for a precautionary approach and not claimed irreversible damage has occurred. It is not clear to the Tribunal what evidence the applicant believes constitutes a 'fundamentally flawed principle'.

86. Restriction plays no part in a management plan is therefore not a measure that can be seen to pursue all of AFMA's legislative objectives.

Response: A draft management plan for the SWTBF has not yet appeared, hence one cannot prejudge its content. If the purpose of a management plan is to both ensure ecological sustainability and long-term economic viability, some form of regulation is bound to be required. The only question is whether it will prove equitable and efficient.

87. The boundary is and will continue to hinder implementation of a management plan.

Response: Whether the line is removed now or later, there will be parties questioning details of AFMA's policy and details of the management plan. There is no convincing evidence removal of the line at the current time will enhance the management plan, indeed evidence given to the Tribunal indicates it may cause confusion and create other problems if latent effort is rapidly activated.

88. In the event the Tribunal holds that AFMA's policy is unsustainable, the condition on his permit should be removed.

Response: The Tribunal agrees this would be an appropriate action.

89. In the event the Tribunal holds that AFMA's policy is consistent with AFMA's objectives, the applicant contends the Tribunal is required to decide this matter consistent with the objectives of the Fisheries Management Act and to have regard to a range of issues in addition to the policy.

Response: Agreed.

90. The applicant contends current interim measures are inadequate and bias. If concerns about latent effort are real, the respondent should act to curb investment throughout the fishery.

Response: AFMA admits the line has limited effectiveness in curbing investment and effort, nonetheless it has considered options carefully before deciding to retain it. It is true other prospects may exist to curb latent effort and prospective capitalisation, but to impose new regulations could well cause adverse reaction or trigger other responses, with no guarantee it would enhance the applicant's situation.

91. The applicant contends the AFMA policy is inconsistent with National Competitions Policy.

Response: All federal agencies are audited for performance on NCP. There is no indication AFMA has contravened the policy or this would have been reported. It is possible short-term inefficiencies in competition may occur, but AFMA's commitment to pursue long-term economic efficiency has been demonstrated in the current case.

92. The applicant contends special circumstances in his case are such that the permit condition that he cannot operate north of the 34^o south should not be applied.

Response: The applicant cites considerable investment, legitimate expectations, other stakeholders with unfair advantage and the need to return to port to change permits as his disadvantages. The same could be said of other participants in the fishery and no evidence was produced to indicate he had been discriminated against individually or had circumstances markedly different from others.

93. In the case of Re Jetopay and Australian Fisheries Management Authority (1994) 33 ALD 209 at 233, Purvis J considered the fairness of operation of the policy of applying a formula to allocate quotas. His Honour found that if it had been applied uniformly over a number of participants, there would have to be circumstances which would operate harshly or unfairly before intervention should occur to amend the situation. Here it is a permit condition rather than a quota which is involved, but even if Mr Justice did succeed in having the permit condition removed, this would raise the question of natural justice for others who had not appealed. As already stated, the Tribunal has not been able to find evidence Mr Justice has been discriminated against or has special circumstances different from other permit holders in the southern fishery.

Decision

94. The Tribunal has considered the totality of evidence and while sympathetic to Mr Justice's concern that removal of the line is a matter of urgency to him, must weigh the likely implications of removing the line in the short term, with somewhat unpredictable outcomes, as against the certainty of long-term benefits once a management plan is in place and the line may safely be removed. In the view of the Tribunal, the latter is the preferable option.

95. The thrust of the AFMA Board's decision, which underlies the decision as to the area condition on the permit, is that a management plan is to be developed and implemented as a matter of urgency. The decision to retain the line in the interim is an attempt to limit the activation of latent effort and avoid a risk of overcapitalisation. Whether successful or not, the policy was arrived at after considerable consultation and substantial deliberation, with all AFMA's statutory objectives in mind. Economic and scientific evidence provided to the Tribunal confirms that a risk exists that if current policy is changed now, confusion and tensions may arise within the SWTBF, with rapid expansion of fishing capacity and effort and accelerated catch and bycatch, putting some species at risk. This point was especially of concern to West Australia, given its focus on recreational game fishing. What is clear from the evidence is that at this stage of the SWTBF a cautious management approach is essential and active urgent establishment of a management plan.

96. On the whole of the evidence before the Tribunal it is concluded that imposition of a condition on permit 26085, in the name of Mr Craig Justice, but managed by FMS Pty Ltd, restricting fishing operations to areas below 34^o south during year 2000-2001 was lawful and consistent with the pursuit of all of AFMA's statutory objectives. There is no compelling or cogent reason to amend the policy or remove the line at this stage of development of a management plan for the SWTBF, but AFMA has made a commitment to remove the line once the management plan is implemented and this should be regarded as a high priority action.

97. The Tribunal affirms the decision under review.

I certify that the 97 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor b W Davis AM (Part-time Member)

Signed: K L Miller (Personal Assistant)

Date/s of Hearing 10, 11, 12, 13 December 2001

Date of Decision 30 January 2002

Counsel for the Applicant Mr Robert Fish

Commercial Fisheries Management Strategies (CFMS)

Counsel for the Respondent Mr Tom Hanks Q.C.,

Solicitor for the Respondent Mr Justin Hyland, AGS

Counsel for Party Joined Ms Caroline Thatcher

Crown Solicitor for State of WA