Micallef-v-Minister for Fisheries [2001] NSWADT 1 (22 January 2001)

Last Updated: 6 June 2001

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Micallef-v-Minister for Fisheries [2001] NSWADT 1 revised - 23/01/2001

PARTIES: APPLICANT

David Micallef

RESPONDENT

Minister for Fisheries

FILE NUMBERS: 003129

HEARING DATES: 28/08/2000

SUBMISSIONS CLOSED: 28/08/2000

DECISION DATE: 22/01/2001

BEFORE: Rice S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Fisheries Management (General) Regulation 1995

Fisheries Management Act 1994

CASES CITED: Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634

Green v Daniels (1977) 5ALJR 463

Re Aston and Secretary to the Department of Primary Industry AAT No 85/27

APPLICATION: Application of Government Policy

Fisheries Management Act - fishing licence- endorsement on licence

Fishing licence - endorsement on licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: D Inverarity, barrister

RESPONDENT REPRESENTATIVE: J Crespo, barrister

ORDERS: 1 The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicant is not eligible for a Category One Hauling endorsement, is set aside

2 In substitution the decision is made to refer the matter back to the review panel for further consideration of the applicant's eligibility for a Category One Hauling endorsement, together with a recommendation that the panel take account both of the reasons of the Tribunal in these proceedings, and of the panel having previously been satisfied that the applicant meets the eligibility criteria in clause 191N of the Fisheries Management (General) Regulation

3 Pursuant to s88 of the Administrative Decisions Tribunal Act I make no award of costs.

Reasons for Decision:

1 In my view Mr Micallef is eligible for the endorsement he seeks. Mr Micallef's application is therefore successful. The effect of this for Mr Micallef is that the review panel will reconsider his eligibility for an endorsement having regard to these reasons.

2 Mr Micallef owns fishing business FB1644 and holds a commercial fishing licence. On 29 September 1996 he applied for an `Estuary General Restricted Fishery - Category One Hauling' endorsement on his commercial fishing licence.

3 The Minister advised Mr Micallef that his application had been refused, and Mr Micallef requested a review of that decision by the Restricted Fisheries Review Panel.

4 The Restricted Fisheries Review Panel recommended to the Minister that Mr Micallef's application for the endorsement be refused. By letter dated 10 December 1999 Mr Micallef was advised of the Minister's decision, in accordance with the review panel's recommendation, to refuse the endorsement.

Internal review

5 At the time the Minister's decision was subject to internal review as required by s53(1) of the Administrative Decisions Tribunal Act (ADT Act). This requirement has since been removed by Clause 6A of the Administrative Decisions Tribunal (General) Regulation 1998.

6 Mr Micallef sought an internal review of the Minister's decision, and by letter dated 3 February 2000 Mr Micallef was advised that the Minister's decision to accept the review panel's recommendation not to issue him with the endorsement was confirmed. A Statement of Reasons was provided.

7 The Statement of Reasons says at (A)(vii) that "in relation to the Department's policy on net criterion . . . relating to a Category One Hauling endorsement, the applicant did not own a general purpose net, trumpeter whiting net, and/or pilchard, anchovy and bait net registered in their name prior to 1 January 1991". Consequently, at (C)(iii), the Panel "made a recommendation to the Minister that the application for a Estuary General Restricted Fishery - Category One Hauling endorsement be refused".

8 On 1 May 2000 Mr Micallef applied to the Administrative Decisions Tribunal for review of the decision not to issue him with a Category One Hauling endorsement.

Reviewable decision

9 The reviewable decision for this Tribunal is the Minister's decision, advised to Mr Micallef by letter dated 10 December 1999 to accept the review panel's recommendation not to issue him with the endorsement.

Applicable law

10 Mr Micallef holds a commercial fishing licence, as he is required to by s102 of the Fisheries Management Act 1994 (FMA):

A person must not take fish for sale from waters to which this Act applies unless the person is authorised to do so by a commercial fishing licence.

11 By s112(1)

A commercial fishing licence does not authorise a person to take fish for sale in a restricted fishery unless the holder is authorised by the Minister, by an endorsement on the licence, to do so.

12 By s113(2):

Eligibility for endorsement of commercial fishing licences is to be determined in accordance with the regulations.

13 Section 113(2) is of critical importance. It is the sole source of authority in the FMA for allowing access to an endorsement. It provides, unambiguously, that eligibility for endorsement is to be determined in accordance with the regulations. It does not provide for eligibility to be determined in accordance with any other provision. The regulations under the FMA are the provisions of the Fisheries Management (General) Regulation 1995 (FMR).

14 The Category One Hauling endorsement sought by Mr Micallef is provided for in Part 8 Division 2C of the FMR. The eligibility requirements for that endorsement are in cl.191N.

15 There are two `general' criteria for all types of endorsements, in cl.191N(1):

The general requirements for an endorsement are that the person:

(a) owns a licensed fishing boat that is suitable for use in the restricted fishery, and

(b) has submitted to the Director at least 12 estuary waters catch returns in any 4 years (not necessarily consecutive) from 1986 to 1993, and at least one of those returns relates to a month prior to January 1991

16 There are then specific criteria for each type of endorsement, in clauses 191N(2) to 191N(10). For a Category One Hauling endorsement, cl.191N(9) provides that:

A person is eligible for a category one hauling endorsement if the Minister is satisfied that:

(a) the person fulfils the general requirements for an endorsement, and

(b) at least 10 estuary waters catch returns have been submitted to the Director in the person's name or listing the person as a crew member in the years 1986 to 1990 that indicate that fish were taken by the method of hauling.

17 There are no other eligibility criteria for endorsement in the FMR, or in any other regulations under the FMA. There are no other regulations under the FMA. There are no eligibility requirements in the FMA. Cl.191N is the full extent of the criteria against which eligibility for endorsement is to be determined as provided for in s113(2) of the FMA. Contrary to the submissions for the Minister, the criteria in cl.191N are exclusively the criteria, by the operation of s113(2).

18 The criteria in cl.191N(9) are factual circumstances, as to the existence of which the Minister must be satisfied. It is not in dispute that the Minister is satisfied as to the existence of these factual circumstances. That should be the end of the matter: Mr Micallef is eligible, in accordance with s113(2) of the FMA and cl.191N of the FMR.

19 It is said for the Minister, however, that there is a further criterion for eligibility for endorsement, the `net requirement', which is in a document titled Restricted Fisheries Entry Criteria. The `net requirement' says that applicants

must present their General Purpose Net, Trumpeter Whiting Net and/or Pilchard, Anchovy and Bait Net for inspection on a date to be fixed.

(and) must also present a corresponding net certificate in their name, dated prior to January 1991, to qualify for an endorsement to use these specific net types.

20 Mr Micallef owns a general purpose net, and can therefore `present it for inspection'. However, he did not own the net before January 1991 and is therefore unable to `present a corresponding net certificate in his name, dated prior to January 1991'. On this criterion Mr Micallef would not be eligible for an endorsement.

21 What is the status of the `net requirement' and the document in which it occurs?

22 In an open letter to all commercial fishers in September 1996 the then Minister for Fisheries invited applications for "endorsement in the restricted fisheries being created in March 1997". The letter refers to "my Department, NSW Fisheries, and the commercial fishing industry (having) worked together to reach agreement on the minimum entry level criteria for each of these restricted fisheries".

23 Most relevantly, the letter says "The agreed entry criteria are enclosed with this letter". Attached to the letter was an open letter from the Director of Fisheries dated 17 September 1996 which itself enclosed a restricted fisheries "application kit". The letter says "The attached entry criteria for each fishery establish the minimum level of participation".

24 The application kit contains a section headed "Restricted Fishery Entry Criteria", within which is a part headed "Estuary General Restricted Fishery". The opening paragraph of that part says:

The applicant must satisfy both the following two criteria to obtain entry to the estuary general restricted fishery . . Applicants must also satisfy additional criteria to obtain other gear or method endorsements.

25 There follows a boxed section which sets out, in slightly different terms, the general criteria in cl.191N(1) (see para 15 above):

1. Must have licensed in their name or prove financial ownership of a licensed fishing boat suitable for use in this fishery.

2. Must have submitted:

a) a minimum of 12 estuary waters catch returns during any 4 years from 1986 to 1993, and

b) at least one of these returns must be for a month prior to January 1991.

26 After this box is text which says:

The applicant must also satisfy specific entry criteria to qualify for the 9 categories of endorsement listed below.

27 In the boxed section headed "Category One Hauling" the text reads, with emphasis shown as in the original:

A minimum of 10 estuary waters returns lodged in the applicant's name or where the applicant is listed as a crew for the years 1986 to 1990 recording hauling as a method, and the applicant must present their General Purpose Net, Trumpeter Whiting Net and/or Pilchard, Anchovy and Bait Net for inspection on a date to be fixed.

Fishers must also present a corresponding net certificate in their name, dated prior to January 1991, to qualify for an endorsement to use these specific net types.

28 Before the word `and' which appears in bold, the text sets out, in slightly different terms, the specific criteria in cl.191N(9) (see para 16 above). After the word `and' which appears in bold, the text sets out the `net requirement'. The `net requirement' does not appear in cl.191N or any where else in the FMR.

29 As I said above, section 113(2) of the FMA is clear: eligibility for endorsement of commercial fishing licences is to be determined in accordance with the regulations. The `net requirement' is not in the FMA, is not in the FMR, and is not in existence by reference to any power in the FMA.

30 In my view the `net requirement' is not relevant to a determination of eligibility for endorsement, and I should not take account of it.

31 The Minister relies on s 64(1) of the ADT Act, by which I must

give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

32 Further, by s64(4), I may:

have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

33 The "agreed entry criteria" in the application kit, which include the `net requirement', are said by the Minister to be `policy', and therefore something I must take account of.

34 The "agreed entry criteria" may be policy of the type that reflects the position that a Government wishes to take on a matter, in this instance after extensive industry consultation. That `policy' is found reflected in a Government's legislation, in this instance in the FMA and the FMR.

35 The "agreed entry criteria" are not, however, `policy' of the type that guides or gives assistance in arriving at the preferable decision in this case (see Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 per Brennan J at 643). They are not `policy' of the type that guides or gives assistance in arriving at the preferable decision in any case in which eligibility for endorsement is determined in accordance with cl.191N of the FMR.

36 Nothing in the "agreed entry criteria" bears at all on how a decision-maker is to determine whether they are satisfied as to the factual circumstances which go to eligibility for endorsement (see eg Green v Daniels [1977] HCA 18; (1977) 51 ALJR 463 at 467). Rather, the "agreed entry criteria" in the application kit introduce a further, distinct criterion, additional to those which Parliament has enacted as appropriate to establish eligibility (Green v Daniels at 467). If given effect, this additional criterion has the potential, realised in Mr Micallef's case, to take away the status of eligibility established by reference to the criteria in the regulations.

37 It is simply not possible to "give effect to", or relevantly to "have regard to" such `policy' in determining whether the factual circumstances required by the criteria in cl.191N exist. The `net requirement' raises a different consideration altogether.

38 If it is the Government's policy, that is to say its intent, that the `net requirement' be a criterion in accordance with which eligibility is to be determined, then that criterion, along with the other eligibility criteria, must be found in the regulations.

39 If I am wrong, and the "agreed entry criteria" are "Government policy" within the meaning of s65(1) of the ADT Act, then in my view that policy is not "relevant Government policy" for determining eligibility within the bounds clearly set by s113 of the Act: it has no bearing on making a determination on the prescribed criteria.

40 If, alternatively, I am wrong and the "agreed entry criteria" are `any other policy' within the meaning of s65(4) of the ADT Act then that policy is, in my view, "contrary to law". It is policy the application of which can take away the status of eligibility which has already been established by reference to the lawfully prescribed criteria. For the same reason, application of such policy would produce "an unjust decision" in the circumstances of this case.

41 I am conscious of the importance of policy which has been developed in lengthy and productive consultation between the Minister, the Department and the fishing industry. Such policy is important to the successful implementation of the objects of the FMA and the resulting restricted fisheries regime. As was said of the equivalent national regime: policy decided "at the highest level .. . developed in the political arena after consultation with industry" must be given great weight (Re Aston and Secretary to the Department of Primary Industry AAT No 85/27 at para 33).

42 But to the extent that the policy resulting from the consultation prescribes a binding criterion for eligibility, it must be found in the regulations. To treat is as policy which is relevant to determining eligibility in accordance with the regulations is "entirely misconceived or proceed(s) on a wholly erroneous basis" (Re Aston and Secretary to the Department of Primary Industry AAT No.85/27 at para 35).

43 Having regard to the relevant factual material and the applicable law, I would be satisfied that Mr Micallef is eligible for a Category One Hauling endorsement, the requirements of cl.191N(9) having been met.

44 I have decided therefore that the correct and preferable decision is that, in terms of clause 214D(1)(b) of the FMR, the matter be referred back to the review panel for further consideration, together with a recommendation that when considering Mr Micallef's eligibility for an endorsement, it take account of these reasons, and of the panel having previously been satisfied that the applicant meets the eligibility criteria in clause 191N of the FMR.

45 ORDERS

1. I make the following orders pursuant to s63(3)(c) of the Administrative Decisions Tribunal Act and cl.214D(1)(b) of the Fisheries Management (General) Regulation 1995:

2. The decision of the Minister to, in accordance with the decision of the review panel, confirm the determination that the applicant is not eligible for a Category One Hauling endorsement, is set aside.

3.In substitution the decision is made to refer the matter back to the review panel for further consideration of the applicant's eligibility for a Category One Hauling endorsement, together with a recommendation that the panel take account both of the reasons of the Tribunal in these proceedings, and of the panel having previously been satisfied that the applicant meets the eligibility criteria in clause 191N of the FMR.

4.Pursuant to s88 of the Administrative Decisions Tribunal Act I make no award of costs.