Snape v Minister for Fisheries [2002] NSWADT 29 (28 February 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Snape -v- Minister for Fisheries [2002] NSWADT 29

PARTIES: APPLICANT

Ronald Phillip Snape

RESPONDENT

Minister for Fisheries

FILE NUMBERS: 013254

HEARING DATES: 12/02/2002

SUBMISSIONS CLOSED: 12/02/2002

DECISION DATE: 28/02/2002

BEFORE: Higgins S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Fisheries Management (General) Regulation 1995

Fisheries Management Act 1994

CASES CITED: Australian Broadcasting Tribunal v Board [1990] HCA 33; (1990) 170 CLR 321

APPLICATION: Jurisdiction

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

C Cory, solicitor

ORDERS: The Tribunal has no jurisdiction to hear the application and it is dismissed.

Reasons for Decision:

Background

1 Mr Snape has made an application to the Tribunal seeking review of the refusal by the Minister for Fisheries ("the Minister") to grant him an increase in his catch history pursuant to s. 51(5) of the Fisheries Management Act 1994 ("the FM Act"). The application is not worded exactly in this form but is the essence of what he is seeking.

2 Mr Snape is the owner of commercial fishing business FB 1760. He is a sole operator and has actively represented the industry since 1988 through the former Commercial Fishing Advisory Council and other bodies, which have and continue to represent the industry. This representation has taken up a considerable amount of time, which he would have otherwise used to fish.

3 Mr Snape explained that in the late 1980's and early 1990's his representational work was very extensive in preparation for the introduction of the FM Act in 1994 and its coming into effect in 1995, together with the Fisheries Management (General) Regulations ("the regulations"). He also explained that at the time the Act and the regulations were being brought into effect, the Government of the day promised industry representatives, such as himself, that they would not be disadvantaged under the new legislation because of their representational work. That is, it was acknowledged by the Government of the day that industry members who had given up their fishing time to represent their members had made a valuable contribution to the changes to commercial fishing and that this should be recognised in some way. This acknowledgement is contained in s. 51(5) of the FM Act. That section is contained in Part 3 of the FM Act, which provides for and regulates commercial share management fisheries. The essence of this scheme of management is the allocation of shares to commercial fishers in particular fisheries, with the number of shares being determined on the fisheries catch history (s. 50(3) of the FM Act).

4 However, after the FM Act came into force the Minister did not implement any of the prescribed stages set out in s.41 of the FM Act in order to bring Part 3 into operation. Instead, new regulations where brought into effect which established new classes of restricted fisheries pursuant to s. 111 of the FM Act (see Part 8 of the regulations). Mr Snape's commercial fishing business became subject to these new regulatory provisions and he was required to obtain the relevant endorsements if he wished to continue to fish in these fisheries.

5 Mr Snape applied for and was given endorsements to take fish for sale in certain specified restricted fisheries. Entitlement to the various classes of restricted fisheries are primarily based on the fishers catch history between the years 1986 - 1993, and is determined in accordance with cl. 135(3) of the regulations.

6 In accordance with the regulations, during 1997, determinations were made as to Mr Snape's catch history in the various restricted fisheries for which he had sought an endorsement. Mr Snape sought review of those determinations, as he was entitled to do, to the review panel established under Division 6 of Part 8 of the regulations. There were several reviews and it would appear that a final amended validated catch history was made by the review panel on 24 July 2001 and that Mr Snape was advised accordingly. Mr Snape acknowledges that some small allowance was made for his representational work in these determinations, but not to the extent promised.

7 It would appear that Mr Snape then wrote to the Minister requesting that the Minister increase his validated catch history in accordance with s. 51(5) of the FM Act. The Minister did not respond to Mr Snape and on 25 October 2001, Mr Snape made his application to the Tribunal.

8 In the meantime, the Director for Fisheries wrote to the Minister on 18 October 2001 and provided the Minister with a response to the matters raised by Mr Snape in his letter of 24 July 2001. In that letter the Director states: "There is no provision in The Fisheries Management Act 1994 for adjustments to catch history based on records of meeting fees and as such an adjustment to Mr Snapes catch history is not possible on this basis."

9 On 9 November 2001, the Minister wrote to Mr Snape, providing him with a copy of the Director's advice and stating that he had difficulty in seeing where his entitlements arose.

10 Obtaining what he argues to be his full entitlements has now become of some importance to Mr Snape as the Minister, in consultation with the industry, is bringing into operation the commercial share management fisheries scheme provided for under Part 3 of the FM Act. What is of concern to Mr Snape is that his shares will be allocated on his existing determined catch history, which has not been adjusted to take into account his representational work.

11 The Director of NSW Fisheries has challenged the Tribunal's jurisdiction to hear Mr Snape's application.

12 It was agreed between the parties that the Tribunal would consider this question on the papers filed in the Tribunal, as well as having a short hearing by telephone conference. That telephone conference was held on 12 February 2002, and was recorded.

Submissions

13 During the telephone conference, Mr Snape submitted that in effect what he was seeking review of was the determination of his validated catch history as this was the basis on which entry to the restricted fisheries had been determined and the basis on which shares were to be issued under the commercial share management fisheries. He went on to submit that an endorsement was no more than the determined catch history of the fisher for the relevant restricted fishery.

14 Ms Cory, for the respondent, in her written submissions, has used the letter dated 18 October 2001 from the Director of NSW Fisheries to the Minister as the basis of Mr Snape's application.

15 Ms Cory then submits that the letter dated 18 October 2001 could be classified in 3 ways:

(a) a decision of the Director as to Mr Snape's catch history under cl 135 of the regulations;

(b) a decision of the Director from recommendations of the review panel in connection with Mr Snape's applications for the various endorsement he applied for;

or

(c) a decision of the Minister's delegate under s. 51(5) of the FM Act.

16 In each case Ms Cory submitted that the decision was not a reviewable decision as the FM Act nor the regulations expressly provide that they are reviewable as required by s. 38 of the Administrative Decisions Tribunal Act 1997.

Relevant Legislation

17 S. 38(1) of the Administrative Decisions Tribunal Act 1997 ("The ADT Act") provides that:

"The Tribunal has jurisdictions under an enactment to review a decision (or a class of decision) if the enactment provides that application may be made to it for a review of any such decision (or class of decision) made by an administrator:

(a) in the exercise of functions conferred or imposed by or under the enactment, or

(b) in the exercise of any other function of the administrator identified by the enactment.

18 Section 5 defines the terms "enactment" to mean an Act other than the ADT Act or a statutory rule.

19 Sub section 38(2) of the ADT Act provides that:

"Nothing in subsection (1) enables jurisdiction to review a decision to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by the Act (other than this Act)".

20 Accordingly, the Tribunal's jurisdiction to review a "decision" is derived from the legislation under which the "decision" was made and which provides that an application can be made to the Tribunal to review that "decision".

21 In this case, it is the FM Act and the regulations where the jurisdiction of the Tribunal must be found. There is no general provision in the FM Act giving the Tribunal jurisdiction to review decisions made under the Act, however, there are specific provisions (s.126,146,160,161 and 177) which do give the Tribunal jurisdiction to review certain decisions.

Commercial Share Management Fisheries

22 S. 51(5) of the FM Act provides as follows:

"The Minister may increase the catch history of a person for any period during which the person was unable to engage in the persons usual fishing activities because of the persons duties as a representative of the commercial fishing industry".

23 As mentioned above, s. 51(5) is contained in Part 3 of the FM Act, which provides for and regulates commercial share management fisheries. Section 50 sets out the method of determining eligibility and entitlement to shares. This includes a provision that shares are to be "allocated to eligible person in proportion to their catch history in the fishery" (s. 50(3) of the FM Act).

24 Section 51 makes provision for determining a fishers catch history in the fishery. Section 51(4) provides that:

"The catch history of a person is, subject to any appeal under this Part, to be determined by the Minister having regard to the records, kept by the Director, of fish taken by the person or such other documents are prescribed by the regulators".

25 The relevant provisions prescribed in the regulation for the purpose of s. 51(4) of the FM Act are contained in cl. 128 of the regulations. And as I have already mentioned, s. 51(5) of the FM Act gives the Minister a discretion to increase the catch history of a person in circumstances where that person was a representative of the commercial fishing industry and was unable to engage in his usual fishing activities as a result of such representation.

26 Division 9 of Part 3 makes provision for appeals under that Part to the Share Management Fisheries Appeal Panel ("Share Appeal Panel"). Section 84 (c) provides that an applicant for shares in a share management fishery may appeal to the Share Appeal Panel against a decision under that Part relating to the provisional issue of shares in the fishery. This would include an appeal against a determination by the Minister under s. 51 (4) in respect of the person's catch history, which has been made exercising the discretion contained in s. 51(5).

27 Appeal rights to the Share Appeal Panel were amended by new provisions contained in a newly inserted Part 3A into the FM Act (see Schedule 7 of the Fisheries Management and Environmental Agreement Legislation Amendment Act 2000). The relevant provision is s 6B which provides:

"Appeal to Share Appeal Panel

(1) This clause applies in respect of a restricted fishery that becomes a category 2 share management fishery as a result of the amendments made to Schedule 1 by the Fisheries Management and Environmental Assessment Legislation Amendment Act 2000.

(2) Despite section 84, there is no appeal to the share appeal panel in relation to any matter that was determined by the Minister before the restricted fishery became a share management fishery (such as a determination as to the catch history of a person) if the determination could have been made the subject of a review request under Division 6 of Part 8 of the Fisheries Management (General) Regulation 1995.

(3) The Share Appeal Panel is to refuse to hear an appeal in relation to any such matter."

28 Part 3 of the FM Act does not contain any appeal rights to the Tribunal from decisions made under this Part, including a decision made by the Share Appeal Panel.

Licensing and Restricted Fisheries

29 Part 4 of the FM Act makes provision for commercial fishing licenses, fishing boat licences and other commercial fisheries management matters such as "restricted fisheries" (see s. 111 of the FM Act).

30 Section 112(1) of the FM Act provides that the holder of a commercial fishing licence is only authorised to take fish from a restricted fishery if the holder of the license is authorised by the Minister by an endorsement on his licence to do so.

31 As I have already mentioned, Part 8 of the regulations set out the eligibility criteria for the various classes of endorsement. These criteria are based on the fisher's catch history which is to be determined in accordance with cl 135(3) of the regulations. The relevant sentences of this clause are:

"The catch history is to be determined by the Director in such manner as the Director considers appropriate, having regard to the records, kept by the Director, of fish taken for sale by any person involved in the business, or of fish taken for sale by a licensed fishing boat operated by the business, or to a combination of both".

32 Accordingly, for the purpose of determining a fisher's catch history in respect of a restricted fishery endorsement, no provision is made for taking into account past representations for the industry as provided for share management fisheries in s. 51(5) of the FM Act.

33 As I have already mentioned, Division 6 of Part 8 of the regulations make provision for an applicant for an endorsement to a restricted fishery to request a review of a determination on the applicant's eligibility for an endorsement or a determination on the applicant's catch history in a particular fisheries (cl 214A(1) of the regulations).

34 Such requests were to be made by 31 December 1997 (cl 214A(3) of the regulations) and were to be heard by a review panel to be established by the Minister (cl 214B of the regulations). The grounds for review are set out in cl 214C of the regulations. These do not include a provision along the lines of s. 51(5) of the FM Act.

35 On completion of the review, the review panel is to report to the Minister who has a discretion to confirm the determination of the review panel, or set it aside and substitute a new determination or to refer the matter back to the panel for further consideration (cl 214(1) of the regulations).

36 There is no provision in the FM Act or its regulations, which provide that determinations of the review panel pursuant to Division 6 of Part 8 are reviewable by the Tribunal. However, a decision by the Minister to refuse to issue an endorsement is expressly reviewable by the Tribunal under s. 126 of the FM Act.

37 S. 126 of the FM Act provides that:

"s. 126(1) a person who is dissatisfied with any of the following decisions under this Part may apply to the Administrative Decisions Tribunal for a review of the decision concerned:

(a) the refusal to issue a relevant authority to the person or to renew the person's relevant authority,

(b) the imposition of conditions on the person's relevant authority (otherwise than by regulation),

(c) the suspension or cancellation of the persons relevant authority.

(2) for the purposes of this section, an application for the issue or renewal of a relevant authority is taken to have been refused if the authority is not issued or renewed within 60 days after the application was duly made"

38 This section is contained in Part 4 of the FM Act and s. 125 defines the term "relevant authority" to mean a commercial fishing licence, an endorsement on a commercial fishing licence, a fishing boat licence, the registration of a member of the crew of a boat, or a fish receiver's registration.

Reasons for Decision

39 Having regard to the legislative structure in respect of a determination of the validated catch history of a commercial fisher, in my opinion the letter dated 18 October 2001, from the Director of NSW Fisheries to the Minister can not be described as containing any decision as classified by the respondent. The letter is merely a letter in which the Director provides advice to the Minister in response to questions raised by Mr Snape.

40 On the other hand, the letter dated 9 November 2001 from the Minister to Mr Snape is a record of a decision by the Minister. The letter includes a decision to refuse Mr Snape's request for an increase in his validated catch history. For the purpose of this application, I will assume that this is the decision in respect of which Mr Snape seeks a review as in substance it does not alter the application. The question is on what basis was that decision made and is it reviewable by the Tribunal?

41 While the Tribunal has not been provided with a copy of Mr Snape's original request to the Minister, dated 24 July 2001, it is common ground that he had requested an increase in his validated catch history pursuant to s. 51(5) of the FM Act, or alternatively in the spirit of that provision, as promised by a previous Minister for Fisheries.

42 As set out above, this section is contained in Part 3 of the FM Act and the Act does not contain any provision whereby determinations made under that Part, be it by the Minister or the Share Appeal Panel, are reviewable by the Tribunal. Consequently, even if the Minister had made a decision, or refused to make a decision under s.51(5) of the FM Act, this is not a decision which is reviewable by the Tribunal.

43 As I have stated, a decision to refuse an endorsement to a restricted fishery is reviewable under s. 126 of the FM Act. In this case there has not been a refusal, the endorsements Mr Snape applied for were eventually granted.

44 In making a decision to grant the endorsements sought by Mr Snape a determination had to be made in respect of his validated catch history. The High Court in Australian Broadcasting Tribunal v Board [1990] HCA 33; (1990) 170 CLR 321 at 337 held that under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") that a "reviewable decision" was not limited to a final decision and included intermediate decisions made pursuant to an enactment and on which the final decision was based, where that intermediate decision was one of substance effecting a person's right.

45 In this case a determination on Mr Snape's validated catch history would arguably amount to such an intermediate decision. However, jurisdiction to review administrative decisions under the Commonwealth, ADJR Act are far wider then those contained in the ADT Act. The ADJR Act makes any decisions of an administrative nature made pursuant to an enactment of the Commonwealth reviewable unless it has been expressly excluded in that Act (see s. 3(1) ADJR Act). In the Bond case the intermediate decision included a determination that Mr Bond was a "fit and proper person" for the purposes of being granted a licence under the Broadcasting Act 1942 (Cth) and was held to be reviewable even though no decision had been made in respect of the issue of the relevant licence.

46 In this case the intermediate decision, the validated catch history, has been made pursuant to the regulations. However, the FM Act nor the regulations make any express provision for the Tribunal to review this intermediate decision as is required by s. 38(2) of the ADT Act in order to give the Tribunal jurisdiction to review that decision.

47 Therefore, in my opinion the Tribunal has no jurisdiction to hear Mr Snape's application. This does not exclude other avenues of appeal that Mr Snape may have.

ORDERS

48 I order the Tribunal has no jurisdiction to hear Mr Snape's application and it is dismissed.