Re Ian Francis Robinson and Secretary, Department of Primary Industry [1986] AATA 220 (14 August 1986)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: IAN FRANCIS ROBINSON
And: SECRETARY, DEPARTMENT OF PRIMARY INDUSTRY
No. V85/372
AAT No. 2808
Fisheries

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
Hon. Sir W. Prentice (Senior Member)
F.A. Pascoe (Member)
G.R. Taylor (Member)

CATCHWORDS

Fisheries - licence to trawl for fish in South Eastern Trawl Fishery - discretion conferred on decision-maker - Management Scheme introduced by Minister - function of Tribunal in relation to policy - consideration by Tribunal of Scheme - boat under construction - whether special circumstances - Re Aston followed.

Fisheries Act 1952 (Cth.) - ss. 5B,7,8(1)(c), 9(2) & (4);

Drake (No. 2) v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; Re Aston & Anor. and Secretary to the Department of Primary Industry 8 ALD 366; Re Evans and Secretary to the Department of Primary Industry T84/59 of 18 December 1985; Bremner v. Domalewski (1956) (N.S.W.) SR 244.

HEARING

SYDNEY
14:8:1986

ORDER

The decision under review is set aside with the directions that the applicant is entitled to and should be granted endorsements to his Commonwealth Fishing Boat licence to allow his fishing boat FV UJB to trawl for fish in both the South Western Sector and Region B of the Eastern Sector of the South Eastern Trawl Fishery.

DECISION

THE APPLICATION

Mr. Robinson makes application to this Tribunal for review of the decision of the Delegate of the Minister of the Department of Primary Industry of date 8 July 1985 (advised by letter of 25 July 1985), that endorsement of licence so as to allow the applicant's fishing vessel FV UJB to operate in the Eastern Sector Region B of the South Eastern Trawl Fishery ("SETF"), as established under the Fisheries Act 1952 (Cth.), be refused.

2. Following the announcement of the proposed Management Plan for (which was to involve a closure of and limited entry to) the SETF, Mr. Robinson had applied on 18 December 1984, for the necessary endorsements to allow his boat to fish both in Eastern Sector Region B, and in South Western Sector, of the SETF. The Management Plan was implemented on 3 June 1985.

3. So far as relevant to Mr. Robinson's application, the criteria for entry to the fishery upon which he sought to rely were as follows (emphasis added):-

"Region B

A. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

B. The holder of a current Commonwealth Fishing Boat
Licence" ("FBL") "for a boat less than 32 metres in
length which was under construction . . . as at 6
July 1981 and for which a substantial irrevocable
financial commitment had been entered into as at 6
July 1981 and which had begun fish trawling . . . or
Danish Seining in Region B of the Eastern Sector by
5 January 1983, where the operator of such a boat
can provide evidence of continued operation in the
fishery.

C. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

D. The holder of a current Commonwealth FBL for a boat
which has trawled or Danish Seined commercially for
fish in Region B of the Eastern Sector in the
period 1 January 1983 to 16 January 1984 and the
boat qualifies for an endorsement to operate in
Region A of the Eastern Sector or the South Western
Sector.

South Western Sector

A. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

B. A person who had contracted to build or purchase a
boat as at 16 January 1984 and where a substantial
irrevocable financial commitment had been made
prior to that date and who can demonstrate that the
purpose of the boat was to participate in the South
Western Sector of the SETF. Endorsement of the
boat licence will be conditional on the boat
commencing operations in the South Western Sector
by 31 July 1985."

4. The following facts (and they will be canvassed later in these Reasons), we take to be evident:-

As to Region B Category B Requirements:

(i) the applicant did have a boat of proclaimed size
under construction by 6 July 1981;

(ii) substantial irrevocable financial commitment in
respect of that boat had been incurred by 6 July
1981;

(iii) the building of the boat was not completed till
1985;

(iv) the applicant had neither trawled nor Danish
Seined in Region B Eastern Sector by 5 January
1983;

(v) (therefore) . . . no continuance in the fishery as
contemplated, had occurred.

As to Region B Category D Requirements:

(vi) there had been no Danish Seining with the boat in
Region B for the period 1 January 1983 to 16
January 1984;

(vii) the boat qualified neither for Region B, nor
(strictly) for the South Western Sector (because
it did not commence operations by 31 July 1985);

(viii) the boat was treated as having qualified for
South Western Sector (endorsement given);

As to South Western Sector:

(ix) a purpose was demonstrated that the boat was
intended to participate in South Western Sector;

(x) the boat commenced operating in South Western
Sector on 17 August 1985 (i.e. not by 31 July
1985).

5. The panel of authorised Commonwealth/State Fisheries Licensing officers set up to consider applications for entry to the controlled fisheries, and upon whose advice the Minister's Delegate acted, on 8 May 1985 approved Mr. Robinson's application for the South Western Sector (i.e. despite his failure to begin operations until some weeks after the deadline in the criterion applicable). But it refused the application for Eastern Sector Region B for the reason that -

"The boat is not a replacement for a vessel which worked
in the Eastern Sector, nor is it a new vessel which
began operating in the Sector prior to 5th January
1983."

6. Mr. Robinson then availed himself of the reviewing machinery set up under the SETF Management Scheme. This provided for an appeal to a non-Statutory body, the SET Review Committee, instituted by agreement between the Commonwealth and the States of New South Wales, Victoria, South Australia and Tasmania.

7. On 25 July 1985 he was advised that the Review Committee had confirmed the original decision to refuse to licence his vessel for fishing in Eastern Sector Region B. This decision was taken on the grounds that:-

"The evidence presented indicates that construction of
the vessel concerned has been underway for some years
and that completion is not expected for some time. The
vessel under construction is not a replacement of a
former vessel engaged in the fishery nor do you have a
history of personal involvement in this fishery.
Further there is no evidence that you have worked in the
fishery or derived income as a fisherman."

8. The effect of the decision now being reviewed is that, though in the face of failure to comply strictly with the criteria devised for management, discretion was exercised to allow entry to the South Western Sector of the SETF; a further exercise of discretion so as to allow entry into Region B of the SETF was not forthcoming.

9. Before proceeding to the facts which have been put before the Tribunal in support of the application for further review by it, we consider it desirable to record the legislative background and the history of events leading up to the establishment of the Management Plan for the SETF. Thereafter we shall set out our understanding of the function and powers of the Tribunal in this aspect of its jurisdiction.
LEGISLATIVE BACKGROUND TO CONTROLS ON FISHERIES SUBJECT TO COMMONWEALTH JURISDICTION

10. The controls on entry to the SETF were introduced under the Fisheries Act 1952 (Cth.) and in accordance with the objectives set out in s. 5B of the Act which provides:-

"In the administration of this Act, the Minister shall
have regard to the objectives of -

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

(b) achieving the optimum utilization of the living
resources of the Australian fishing zone.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . "

11. Part III of the Act provides for the regulation of fisheries by way of - the declaration of proclaimed waters (s. 7), the regulation of fishing (s. 8), and the granting of licences (s. 9).
Proclaimed Waters: s. 7

12. A declaration of proclaimed waters (the Australian Fishing Zone) was made pursuant to s. 7 of the Act on 20 September 1979 (Government Gazette 26 September 1979).
Regulation of Fishing: s. 8

13. Sub-section 8(1)(c) of the Act empowers the Minister by notice published in the Gazette to prohibit the taking of fish, or fish included in a class of fish, specified in the notice, by a method or equipment specified in the notice. For present purposes four fisheries notices apply to the SETF.
Licences: s. 9

14. S. 9 of the Act provides:-

"(2) The Minister or the Secretary may grant to a person
a licence in respect of a boat authorizing the use
of the boat by that person, or a person acting on
his behalf, in, or in a specified area of,
proclaimed waters for taking fish and for
processing and carrying fish that have been taken
with the use of that boat."

"(4) The Minister or the Secretary may endorse a licence
granted under sub-section (2) or (3) in respect of
a boat so as to extend the licence to authorize the
use of the boat, at any time or during a period
specified in the endorsement, for activities by way
of fishing that are prohibited by a notice in force
under sub-section 8(1), being a notice identified
in the endorsement."

15. The notices referred to in the last paragraph prohibit the taking of fish other than certain prawn species, by trawling in three separate but contiguous areas of proclaimed waters off South Eastern Australia except by boats with licences endorsed under sub-section 9(4). On 18 September 1984 application forms were released setting out the entry criteria and information required in support of an application for endorsement of a Commonwealth Fishing Boat Licence to authorise use of that boat in the SETF. (These were being distributed in October 1984).
MANAGEMENT STRUCTURE FOR FISHERIES SUBJECT TO COMMONWEALTH JURISDICTION

16. The matters set out here are derived from a study of the "T" documents (the s. 37 documents filed in this particular case), the "TP" documents filed in reference to this and all other SETF applications, and the affidavit of B.J. Scott, O.I.C., Fisheries Management Policy Section, Management and Development Branch, Australian Fisheries Service, of the Respondent Department - dated 21 April 1986.

17. The Minister for Primary Industry is responsible under s. 5B of the Fisheries Act 1952 for ensuring through proper conservation and management measures that the resources of the Australian Fishing Zone ("AFZ") are not endangered by over-exploitation and optimum utilization is attained.

18. In co-operation with Fisheries Authorities in the States and other countries, the CSIRO's Division of Fisheries Research and the Bureau of Agricultural Economics, the Australian Fisheries Service ("AFS") co-ordinates the collection of relevant biological, economic and other data on our fisheries and prepares Management Plans and proposals for various fisheries for consideration by the Minister.

19. State authorities are the Commonwealth agents in the issuing of Fisheries Licences and in the surveillance and enforcement of Commonwealth Fisheries laws and regulations as they apply to Australian fishermen.

20. A network of Committees, as indicated above, has been established to advise Ministers on the management of Commonwealth Fisheries. In recent years these Advisory Committees have included representatives from the fishing industry, and have circulated Management Issues papers and draft Management Plans before the submission of recommendations to Ministers.

21. Major changes to management arrangements for particular fisheries are submitted to the Australian Fisheries Council ("AFC"). The Council is the major fisheries policy consultative body consisting of State Ministers responsible for fisheries, together with the Commonwealth Ministers for Primary Industry and Science. The AFC is advised by the Standing Committee on Fisheries ("SCF") which comprises the senior advisers to the Ministers.
THE SOUTH EASTERN TRAWL FISHERY (SETF)

22. The history of the SETF is in brief that it was centred off N.S.W. and commenced in the early 1900's. It developed as a single species fishery based on tiger flathead, and was the principal source of fresh fish for the Sydney/Melbourne markets.

23. In 1936 Danish Seiners commenced operating and forced trawlers further offshore. These apparently dominated the fishery until 1960. The modern phase commenced with market acceptance of other species, grounds further offshore became of increasing importance and other trawlers once more dominated the fishery (these apparently operating more efficiently in deep water). During the 1960's and 1970's the number of Danish Seiners gradually decreased, and the number of trawlers increased. Development of management concerns arose in the late 1970's when a rapid increase in effort occurred with the entry of large trawlers, particularly off N.S.W.

24. The development of the deepwater trawl grounds off southern N.S.W. and eastern Victoria in the late 1970's and large gemfish catches therein was the major reason for the rapid increase in the size of the fleet and introduction of large trawlers. Annual captures of gemfish exceeded 5,000 tonnes but have since fallen to about 3,000 tonnes.

25. The reduction of the gemfish catch and the demise of the Southern Bluefin Tuna Fishery on the east coast, when combined with the rapid increase in both catching capacity of the fleet and costs (particularly fuel), resulted in economic problems for the participants.

26. The South Western Sector of the Fishery has been developed over more recent times. Again there was a very rapid increase in the catching capacity of the fleet operating in this Sector and this resulted in the extension of the Management Plan to include all Commonwealth waters from Barrenjoey Point (off Sydney) to Kangaroo Island, South Australia.
THE LEAD-UP TO MANAGEMENT OF THE FISHERY

27. Problems arose initially apparently on the east coast and this resulted in a joint media release on behalf of the Commonwealth and State Ministers on 7 July 1981 warning that consideration was being given to "a proposal to limit the fishery fleet in waters extending from northern N.S.W. into eastern Bass Strait". The Minister said that "any commitments after 6 July 1981 to acquire a new vessel will not qualify a person for entry to the fishery".

28. The Ministers were concerned about the fact that the large increase in fishery capacity, and the decline in catches of some of the main species, were reducing catch rates, and when combined with increasing costs would reduce the profitability of the fleet. They were also concerned that the fish stocks could be threatened from over-exploitation.

29. These developments, together with the decline in tuna catches (many trawlers participating in the tuna fishery as well), resulted in the extension of fishing further south. As many of the trawl fish species are common to the whole area and east coast fishermen saw the need to re-locate their operations in more southerly waters, fisheries authorities began to consider proposals to extend controls on entry throughout the fishery. Moreover there was a rapid build-up in the number and size of vessels entering or being built for the South Western Sector of the fishery.

30. These factors led to the announcement of 16 January 1984 by the Minister for Primary Industry that a draft Management Plan had been developed for the whole industry.

31. The Minister was apparently mindful that open access to fisheries elsewhere in Australia and other countries has resulted in major conservation, economic and social problems. He was concerned that problems had already resulted on the east coast and could rapidly extend throughout the fishery. The management action taken for the South Eastern Trawl Fishery is supported in a broad sense by the resolutions of the World Fisheries Conference held in Rome in 1984 and by the resolutions of the Australian Fisheries Conference held in Canberra early in 1985.
DRAFT MANAGEMENT PLAN DEVELOPED BY THE SEFC

32. The South Eastern Fisheries Committee ("SEFC") is an inter-government body as has been indicated above, meeting together with a representative from the CSIRO. The body is responsible for advising the Standing Committee on Fisheries of policy options and management arrangements in the south eastern waters of Australia and is provided with biological and technical advice by several research groups including the Demersal and Pelagic Fish Research Group consisting of Commonwealth and State fishery scientists. In August 1984 the SET Management Advisory Committee took over the role of advising Ministers on management of the SETF.

33. A discussion paper was produced in 1981 for the industry by SEFC and outlined the structure and known biological status of the fishery and presented a number of management options available at the time. The paper proposed a limited entry management regime for the east coast region, leaving unrestricted access in the western area of the fishery. In 1981 it was fishing pressure. Copies of the discussion paper were distributed to State Fisheries Authorities and then to inspectors and it is said, to fishermen.

34. The matter of interim assistance for the SETF was referred to the Industries Assistance Commission ("IAC") by the Minister, after representation from the industry claiming that irreparable damage would result to the industry if assistance was not provided. The industry was seeking immediate relief from the financial pressures faced by fishermen on the east coast. They called for controls on imports of fish, particularly from New Zealand. In view of the economic pressures on the fishermen, the Bureau of Agricultural Economics ("BAE") prepared a submission to the IAC and this was before the Tribunal. The submission was based on the analysis of market information and on field survey data collected during 1982 and presented a compilation of economic data. The submission warned that with the persistence of the market conditions at the time, the economic recovery of the fleet to a state of profitability experienced in 1979-1980 may never again occur. However, the BAE did not support the provision of short-term financial assistance, and pointed out that the appropriate management of the fishery would address what was a longer term structural problem. The documents filed indicate that the IAC was in agreement with the BAE submission and recommended against assistance at the time, considering that much of the evidence presented at the hearing before it, related to long-term matters. The Government accepted the advice of the IAC. The Minister re-emphasized that he was concerned about the fishing effort in the eastern area and advised that discussions were proceeding with N.S.W., and only vessels which could show a firm commitment prior to 7 July 1981 would be eligible to participate in any management regime implemented. The Primary Industry Press Release advising the industry of this decision was circulated.

35. Following agreement by the SEFC that as far as possible fisheries should be managed as a whole and not be sub-divided unnecessarily, SEFC recommended discussions be held between the Commonwealth and Tasmanian Governments for the development of a Draft Management Plan covering the whole SET region. The resultant management proposals were endorsed by SEFC; the Tasmanian Fisheries Development Authority was concerned that any Management Plan must take account of their development priorities. Apparently discussions were protracted, four State Governments being involved and Tasmania having special problems in not wishing to stop development of Tasmanian based fisheries enterprises, while N.S.W. was pushing for very tight controls on access to the fishery.

36. A report to Ministers provided a summary of progress towards development of a management regime. Also, the Standing Committee reported on the need to have a paper for circulation to industry at an early date but recognized this would not be possible until a number of details in the Plan, such as access rights, and entry criteria for East Coast and South Western Zone, had been resolved.

37. A Draft Management Plan was developed following consultation between the various authorities and at that time consultation with industry was carried out primarily by the State Fisheries Authorities.

38. The SET Task Force (an industry-government body) was set up to consult with industry over the contents of the proposed plan and report back to Government. Composition and terms of reference of the Task Force were announced in a Media Release of 16 January 1984.

39. The aims of the Plan were to constrain the growth of total fishing capacity while allowing controlled development of under-utilized areas and species. The Plan divided the Fishery into two Management Zones. It was considered that effort in the traditional (Eastern Trawl Fishery) was more than sufficient to fully exploit the fish resources, so stringent entry criteria were proposed there. In the developing zone (off Tasmania and Western Sector), criteria were less stringent and designed to achieve controlled development of under-utilized areas and species.

40. The Draft Management Plan was said to have been widely published in metropolitan and coastal newspapers. A Media Release of 16 January 1984 advised of the Plan's release, and it was also announced in the Australian Fisheries magazine. Multiple copies were distributed to State authorities and district fisheries inspectors who are said to have distributed them to industry.

41. At the time the Draft Plan was released, fishermen and other interested parties were invited to make submissions to the SET (Industry-Government) Task Force. The Task Force undertook visits to a number of ports in the various States. At these meetings there appears to have been widespread support for the introduction of limited entry and the establishment of an Industry-Government Management Committee. Industry indicated that it believed caution should be exercised given the economic difficulties on the east coast and the need to thoroughly assess the state of the fish stocks. While agreeing on the need for limited entry arrangements, some fishermen and State Governments adjacent to the South Western area felt that the Plan must allow for controlled and rational development.

42. Dr. Radway Allen, in a report of March 1984 summarizing the conclusions of a Workshop on Trawl Fisheries Resources, stated that there was potential for the development of major Demersal fisheries - at least for Blue Grenadier, Orange Roughy, and Oreo Dories in the Western Zone. Dr. Radway Allen noted however that the data base was not comprehensive and he recommended additional research and the implementation of a comprehensive log book program.

43. The Task Force accepted Dr. Radway Allen's advice that there was scope for further development of some deepwater species in the South Western Sector of the fishery and agreed on the need to improve the data base and step up research efforts. Many on the Task Force were concerned that available trawl grounds were limited, and when combined with the restricted market for fresh fish, they considered that development of the South Western Sector of the fishery should proceed cautiously.
THE SETF MANAGEMENT PLAN

44. The SET Task Force noted that the eastern area of the fishery was experiencing serious economic difficulty and that there was need for cautious approach to the further development of the fishery. In view of these concerns, the Task Force recommended that the management regime come into effect on 1 January 1985. A series of amendments and adjustments to the SEFC Draft Plan were also proposed including a freeze on all unrestricted licences pending introduction of arrangements to contain and reduce catching capacity in the Eastern Sector, and pending assessment of the commercial viability of exploiting under-utilized deepwater species in the South Western Sector.

45. The report to the AFC by the Standing Committee summarized events since the previous AFC Meeting. It provided Ministers with recommendations of the Task Force, noting these were supported by all industry and Government members with the exception of N.S.W. which did not then endorse the full contents of the Plan. The Standing Committee supported many of the Task Force recommendations but in view of the N.S.W. objection to zoning, no agreement was reached. The AFC noted the recommendations of Standing Committee. However, in view of N.S.W. strong opposition to the division of the fishery into zones, Council did not reach agreement on the proposed Plan. It was proposed that the Minister meet with the various State Ministers to finalize management arrangements.

46. Following the AFC Meeting, further discussions were held with senior officers and the Minister for Primary Industry contacted the N.S.W. Minister. It was then agreed to implement the Management Plan but emphasis was given to the freeze on unrestricted licences and the temporary nature of the zoning arrangements.
IMPLEMENTATION OF THE FINAL MANAGEMENT PLAN

47. The final Management Plan differed from the SEFC Draft Plan as it provided for the introduction of an additional zone in the Eastern Sector, a freeze on licences throughout the industry for two years, establishment of a Management Advisory Committee and a freeze on trawl vessel replacements except in emergency situations, until longer term management measures were implemented. The SET Management Advisory Committee ("SETMAC") consists of representatives from fishermen, processors, the fishery marketers, the four State Fisheries Authorities involved, the CSIRO and AFS. The Terms of Reference given to SETMAC were to co-ordinate the management of SETF, advise AFC through SCF of management development and research needs and provide a forum for consideration of administrative and management submissions.

48. After the Minister was fully briefed a Press Statement was released announcing the Plan - in August 1984. Copies of the Press Statement were distributed to State Fisheries Authorities which distributed the Plan to fisheries inspectors and fishermen. Details were also set out in "Australia Fisheries".

49. A meeting of licensing officers was held on 28 November 1984. The meeting sought to establish a consistent set of guidelines to assist each State in objectively assessing applicants' claims, and resolved that the Review Panel should be independent from the licensing body.

50. The SETMAC meeting reports sought to advise industry of a number of administrative details and impending management arrangements to clarify ambiguities and to address concerns of the industry. In principle these reports were designed to keep industry fully informed of progress and the implementation of the plan and assist in soliciting feedback to the Committee. A warning was issued on 23 October against fishermen anticipating obtaining restricted licences. The warning was issued because of the large number of vessels applying to be licensed.

51. The SET Review Panel was established to collect information on applications for endorsement to Sectors of the fishery with a view to preparing a report for the Minister's Delegate Dr. Bain, Director of AFS. The Panel is chaired by Mr. P. Burns of AFS and includes a senior experienced representative from each State involved.

52. The report of the third SETMAC meeting showed the progress in implementation of the Plan, details of a proposal for amendments to the Plan, including an increase in the number of industry representatives on Committee, and progress towards establishment of a log book program. This report was distributed to all SET fishermen. The meeting of licensing officers considered new applications, developed uniform approaches and procedures for issue of endorsement, considered additional information provided on applications previously considered, and requested advice from SETMAC to define further requirement criteria and to clarify ambiguous or unreasonable clauses.

53. A fourth SETMAC meeting was held, the primary purpose apparently being to allow members to discuss options for implementation of the Plan with the Minister. Items centred around progress in implementing the Management Plan and it was indicated that of 224 applicants, 67 had been rejected. Following discussions with the Minister, SETMAC recommended implementation of the Plan subject to a number of significant amendments being incorporated.

54. The amendments to the Plan were made following a large number of requests from fishermen and, in particular, those from N.S.W. and Victoria. It was noted that the situation off the east coast had deteriorated further as a result of increased costs and reduced landings of tuna. Also the number of vessels qualifying for the South Western Sector was greater than expected, particularly the number of large trawlers. Accordingly, it was agreed that no additional restricted licences would be issued for the South Western Sector during the period of the licence freeze. An additional criterion was set for access to Region B of the Eastern Sector (Criterion D). Conditions were announced for doing away with the internal boundaries.

55. On 7 May 1985 the Minister announced the commencement date for the Management Plan and provided details of the amendments to the Plan.

56. At its fifth meeting SETMAC noted final arrangements for implementation of the Plan, including the Minister's announcement that the fishery would be closed on 3 June 1985, and a number of changes to the Plan. The Committee clarified certain points in the Plan following requests from the Licence Review Panel.

57. Further development of the Management Plan includes consideration of a longer term boat replacement policy and the issue of restricted licences. The Committee have requested further biological and economic assessments to assist in this task.

58. The BAE undertook to update its economic assessment, and a consultant was commissioned to assess the situation in Portland. The BAE noted that the cash operating surplus for the entire fishery had fallen on average by 13% since 1981. The consultant reported that the rapid build-up in catching capacity in the South Western Sector would place strains on the market at least in the short term. The Demersal and Pelagic Fish Research Group reviewed the yield estimates for Blue Grenadier (the main species taken in the South Western Sector) and reduced the previous yield estimates.

59. The SETMAC agreed that in view of the economic situation of the fleet, and the uncertain situation with regard to sustainable yield estimates for the main species, a cautious management approach is required. The Committee has recommended that a boat replacement policy be implemented based on an unitisation system with any replacement subject to the forfeiture of 20% of entitlements. This recognizes the need to contain and reduce the catching capacity of the fleet throughout the fishery. These proposals are said now to be close to finalization prior to submission of the proposals to the Australian Fishing Council.
POLICY AND DISCRETION

60. The Management Plan thus produced has no Statutory force. It is not published as a Statutory instrument. Its terms are not binding on the Minister, who has by force of the provisions of the Act referred to above, an unfettered discretion which may be, and is exercised through Delegates on the advice of the non-Statutory bodies which have been assembled. However, the Plan represents a policy which the Minister has seen fit to formulate and publish, and as such carries considerable weight - the more so when the lengthy process of discussion, consultation, representation and consideration which took place and has been set out above, is kept in mind.

61. The extent to which Ministerial policy should constrain decisions of this Tribunal, was discussed by Brennan, J. in Drake (No. 2) v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. In Re Aston & Anor. and Secretary to the Department of Primary Industry (8 ALD 366) a decision upon restrictions imposed on fishing for Southern Bluefin Tuna; after discussion of Drake (op. cit. supra) the Tribunal (presided over by Davies, J.) stated:-

"Policy is not law. A statement of policy is not a
prescription of binding criteria. By conferring a
discretion upon the decision-maker, the law requires
that all matters relevant to the exercise of the
discretion shall be taken into account."

62. And in Re Evans and Secretary to the Department of Primary Industry (T84/59 of 18 December 1985), a decision upon whether Ministerial policy should be applied in the implementation of an interim proposal to manage the scallop industry in Bass Strait pending a more suitable Scheme, in which the criteria for entering that particular fishery were very similar to those with which we are here concerned, the President (Davies, J.) and Mr. Sinclair said at page 29:-

"In these circumstances, it seems to us that the
Tribunal ought to apply the policy enunciated by the
Minister for Primary Industry save in so far as it finds
there are special or unique circumstances which ought to
be taken into account. This is particularly so as the
policy enunciated by and given effect to by the Minister
for Primary Industry has led to a restructuring of the
industry and has affected adversely or beneficially a
large number of fishermen in Victoria and Tasmania.
Many fishermen have received an appropriate endorsement
upon their fishing licence and may well have acted on
the faith of the restriction in" (scallop) "vessel
numbers. Many other fishermen have either failed to
apply for an endorsement or been refused an endorsement
because they have not met the eligibility criteria.
The credibility of the administrative process requires
that a Scheme having such effects be applied uniformly,
subject to any unique circumstances that arise. A
finding in favour of one applicant who does not meet the
eligibility criteria and who has no special or unique
circumstances would lead to arbitrary and unjust
decision-making."

63. Unlike the submissions in Evans' case, those made herein do not involve any suggestion challenging the reasonableness or appropriateness of the Ministerial policy involved. We adopt what the Tribunal said in the passage in Re Evans referred to above as being equally applicable to matters involving refusal of trawl fishing endorsements. We should respectfully wish to add the comment however, that we do not regard the Tribunal's reference to "unique circumstances" where secondly appearing therein, to be intended either to derogate from the earlier and later references to "special circumstances" or to suggest that the circumstances of an individual case must be unique before a discretion should be exercised in variation of overall policy.
THE FACTS

64. Mr. Robinson, who is a general engineer by occupation, has for some years run an engineering business employing five people, at Lakes Entrance. For some time prior to 1980 he had entertained the idea of building a steel boat for the purpose of engaging in the fishery out of Lakes Entrance. His intention was to fish the traditional Danish Seine trawl grounds - being some 40 miles in radius from that Port. In 1980 he drew up and submitted plans and specifications for a 16 metre (44 gross tons) trawler for the announced intended use as a Danish Seine trawler. His plans and specifications were submitted to the Victorian Marine Board and approved by it in September 1980. In December of that year he began assembling materials for the boat's construction by the purchase of some tons of steel for its frame and bulkhead; and he began work himself on the steel in the new year of 1981. During the first half of 1981 he constructed, fabricated and machined all steering gear, fabricated the stem and stern sections as well as the frames, and bought the engine for the vessel. The assembly seems to have begun late in 1981.

65. In July 1981 the applicant saw the Media Release of the then Minister (dated 7 July 1981) in which the Government's intention to preserve fish stocks by limiting the fishing fleet, was announced. It included the following statements:-

"Trawlers and Danish Seiners which have fished in the
area in recent years will be eligible and fishermen who
can clearly demonstrate a firm commitment before to-day
to enter the fishery, such as having begun building a
vessel or having signed a contract to acquire a vessel
for the fishery before to-day will also be eligible to
enter . . .

If the" (Australian Fisheries) "Council approves the
proposal, any commitments after 6 July 1981 to acquire a
new vessel (as distinct from a replacement vessel) will
not qualify a person for entry to the fishery."

66. On the face of that statement, he was no doubt entitled to regard his project as safe from interference from any ensuing Management Plan. He had by that stage spent some $18,000 on his project and contemplated that he would need to borrow moneys, after the hull was built, to complete the fitting out.

67. However, as a matter of prudence, on 20 August 1981 he wrote to the Secretary, Commercial Fisheries Section of the Fisheries and Wildlife Division of the (Vic.) Ministry for Conservation (much of the Commonwealth's regulatory work is apparently done through State agencies), as follows:-

"Recently there have been several articles in the
local papers regarding a proposal to limit the number of
boats in the Danish Seine Trawl Fishery. This has
caused me some concern as for the past twelve months I
have been involved in the gathering of the plans,
machinery, materials and equipment necessary to
construct a vessel for use in that fishery. I have
attached a list showing what has been done and what
money has been expended to this stage. As yet the keel
has not been laid but I anticipate that this will be
done in the near future and that this vessel will be
completed within twelve months.

I have discussed my situation with your Mr. O'Riley
at Bairnsdale and he advised me to inform you of my
progress and seek some assurance that when the boat is
completed it will be eligible to enter the fishery."

68. In late November 1981 he received a reply from the Acting Secretary, Commercial Fisheries Section, in the following terms:-

"Please accept my apologies for the delay in replying to
your letter of 20 August enquiring about the 'proposed'
introduction of a limitation on the issue of trawl fish
licences.
The question of whether or not a licence limitation
policy will be introduced for trawl fishing in
south-east Australia has not yet been resolved although
at this stage it appears likely that this will take
place. It is expected that any persons seeking a
licence will have to meet the following criteria:-

(a) To be the owner of an existing trawler that has in
the period from 1 June 1980 to the 6 July 1981
fished using otter trawl or danish seine gear in
the proposed limited entry area.

(b) To be the owner of a vessel contracted for or with
the keel laid on or before the 6 July 1981 with
specific intention that it be used in the fishery
(proof of intention required).

The area to be included in the closed zone would
certainly cover all waters that could reasonably be
fished from a boat operating out of Lakes Entrance.

I had intentionally delayed replying to your letter as
it was expected that some indication would be at hand by
this time of the year as to how the freeze was likely to
be introduced. This information is not available at
the moment but it is anticipated that a firm decision
will be made on the introduction of a freeze by the end
of this year."

69. Mr. Robinson continued sporadically, in his spare time from his engineering business, with the construction of his boat. He states that he consulted with Mr. O'Riley, but "no feedback was coming as to restrictions", and he felt confident to proceed. If he had known there was going to be a limiting date for commencement of fishing which would entitle entry to the controlled fishery, he would he said, have proceeded more expeditiously with the building. The first time he heard of the possible requirement that a boat might have to be in the water and fishing by a particular date, was when he obtained the Red Book (the Draft Management Plan for the SETF - 16 January 1984). This document proposed a restriction under Criterion C to boats

(i) under construction at 6 July 1981 and

(ii) which had begun fish trawling or Danish Seining in
the traditional area by 16 January 1984.

And it added a note obviously directed towards the addition of this further requirement (ii):-

"Because of the time that has elapsed since this date"
(6 July 1981) "it is reasonable to expect that such
boats will now be complete and operating in the
fishery."

70. At this point of time Mr. Robinson had spent approximately $150,000 on his boat. He has spent another $100,000 on it since.

71. In the Grey Book (the report of the Task Force for Management SETF) of July 1984, it was recommended that for boats under construction to be licensed for entry to the Eastern Zone Regions A and B - they needed to have been fishing in the Regions by 5 January 1983 (and for the South Western Sector by 31 July 1985). These dates were those finally adopted in the Management Plan.

72. The boat was not in the event, launched until 15 March 1985, and began fishing on 17 August 1985 (necessarily only in the South Western Sector). The profit on its catches for the first eight months would the applicant said, when reduced to an annual figure, indicate a profit of $9,000.

73. Mr. Robinson's evidence at many points is corroborated by Mr. O'Riley who lived at Lakes Entrance until 1976 and thereafter at Bairnsdale, as a Fisheries Inspector. The applicant stated that the main species caught by (presumably the Danish Seiner) Lakes Entrance fishermen are Whiting (inshore) and Flathead - the latter being taken principally at an area called "the Horseshoe". He himself had intended to fish both areas depending upon the availability of species. When the Whiting "go off" he said, "there is only one other species to catch and that leaves the Horseshoe about the only major area to fish". The Horseshoe is a locality south of Cape Conran and east of Flounder A Oil Exploration Platform. It is some six miles east of the boundary between Region B and the South Western Sector, and is an area where the (undersea) countour forms a roughly horseshoe shape.

74. Mr. O'Riley stated that the bulk of the boats that fish the Horseshoe would come from Lakes Entrance, and Danish Seine trawlers traditionally fished out to a radius of fifty miles from that Port. He made reference to maps which were put in evidence, and described the severe limitations imposed upon fishing by boats which can operate only to a radius of some miles from that Port, by the number of oil wells and capped drilling sites (the caps standing some feet from the ocean bed) existing at the top end of the South Western Sector and across the boundary into the western portion of Region B. Fishermen are not allowed to fish within a prescribed distance of oil wells, and the wide area of foul ground created by the wells and site caps greatly restricts fishing operations.

75. Mr. O'Riley regarded access to the Horseshoe (in Region B) for purposes of taking Flathead as so important to the viability of Lakes Entrace Danish Seining, that if he had believed in August 1981 (when his advice was sought) that Mr. Robinson, as a Danish Seiner, would not qualify for the Sector containing the Horseshoe, he would have advised him "to get out as quickly as he could in the best way he could" from his boat-building project. And he added that if he had known in November 1981 what he knew to-day he would have advised Mr. Robinson "not to touch it at all".

76. Mr. Scott who is O.I.C. Management Policy, Management and Development Branch of the AFS, explained in oral evidence further details of the reasoning behind the management policy. He stated that some fishermen who have obtained South Western Sector licences have also been given REgion B licences; some have not. There is one Region B fisherman who has not a South Western Sector licence endorsement - all other Region B fishermen have South Western Sector licence endorsements as well. During the development of policy it was decided to move the South Western Sector-Region B boundary westwards; so that instead of running due south from Cape Hicks, it follows the present line south from Cape Conran to Halibut Oil Rig. This was done, he stated, to bring the Horseshoe into Region B - with the effect that those Lakes Entrance fishermen who had been traditionally fishing inshore and at the Horseshoe, would thereby be shown to have had a history of fishing in what became Region B and would consequently qualify for Region B as well as South Western Sector. That is, the viability of their fishing activities would be preserved.

77. There is, Mr. Scott indicated, a further Plan in process of development - called a "Boat Replacement Policy", which will allow a person with only a South Western Sector licence, to buy out an equivalent number of units of capacity of boat units and thereby obtain endorsement for the area he wants. This would seem to indicate that Management intends to give recognition to some faults or inequities that exist in the present management system. Present estimates seem to suggest that some boats in Region A and Region B are not doing too well financially. The Plan in being is an interim one only, and will be replaced in several years' time.

78. In defence of the decision under review a number of matters have been pointed out, some of which have been adverted to above. Firstly, that though Mr. Robinson did not strictly comply with any of the criteria eventually laid down, he was in fact given a concession so to speak, by being granted licence endorsement to fish in the South Western Sector. Next, it is said that though he knew the fishery was to become a closed one, he delayed five years in the building of his boat. It is contended against the submission that he had been led into a faulty decision by the Fisheries Officer's advice and given a false sense of security, that the advice was given in the setting of his statement that he expected then, in 1981, to complete his boat in 12 months. It is pointed out that when Criterion D was adopted in July 1985, if he had in the then past, proceeded with more urgency, he could have been in the position to have begun fishing in Region B by 16 January 1984, and then qualified by virtue of Criterion D for both the South Western Sector and Region B. The movement of the boundary was done to enable those Lakes Entrance fishermen who had traditionally fished both inshore and at the Horseshoe to have retained the exclusive right to continue doing so and to exclude other fishermen therefrom; Mr. Robinson cannot be considered a traditional fisher of these areas. Attention is also drawn to the applicant's reliance upon his engineering business through the years 1980-1985 as against his work on boat-building; and having regard to his engineering business income it should not be considered, it is said, that the further income he derived from $97,000 of fish sales in the period available for completion was unreasonable. And finally, that a decline of 13% in the cash operating surplus across the SETF which had been calculated in the year 1984-1985, should tend to militate against the introduction of further fishermen into Region B.
DO THE FACTS CALL FOR FURTHER EXERCISE OF DISCRETION IN MR. ROBINSON'S FAVOUR?

79. We note in the first place, from the evidence of Mr. Scott, that there do not appear to be any other applicants for licences who have been in a situation similar in all respects to Mr. Robinson's; so that the Tribunal is not to regard a possible variation in licensing for Mr. Robinson as creating a precedent which was likely to encourage a flood of similar applications for review. We observe that there have been a number of adjustments in the formulation of the Management Plan as it developed, which were clearly intended to deal with inequities as between fishermen that were likely to develop. And we assume that the grant of a licence for the South Western Sector despite non-compliance with the required commencement date of fishing even for that Sector, gives an indication that some inequity was thought to have been produced in regard to Mr. Robinson on a Departmental view of his circumstances. We note that the Plan is interim in nature and presumably will be subject to alterations.

80. We take it to be evident that the applicant, knowing in 1981 of the impending closure and management of the fishery should be regarded as having acted prudently in trying to advise himself as to his boat-building project for engaging in the traditional Lakes Entrance Danish Seining operations. We consider he acted in good faith on the advice he received from the Departmental representative, Mr. Ackroyd. It is clear from the alterations in the Management Plan that the advisers and planners agreed that for traditional Danish Seiners based on Lakes Entrance, access both to the inshore Whiting (South Western Sector) and to the complementary Flathead grounds at the Horseshoe (Region B), was necessary for a viable fishing effort. In this regard we find Mr. O'Riley's evidence that if he had known in August 1981 or even in November of that year, that the Horseshoe ground would not have been available to Mr. Robinson, he would have advised him to abandon his project, most significant.

81. As it turned out, it was not till the Task Force report was produced in July 1984 that it was revealed that commencement of fishing by 16 January 1984 was proposed to be an added requirement to having commenced boat-building by January 1981 as qualification for licensing to fish in Region B. No doubt the expectation that a boat abuilding at 6 July 1981 would have been in the water by 16 January 1984 (as noted in the Draft Plan) would have been a reasonable one for those other than Mr. Robinson who, as we have seen, was lulled into a false sense of security as to the future of his project by the assurance given him in good faith in 1981. By July 1984, it was of course impossible for him to comply with that added requirement of the Criterion B for Region B. The Management Plan (the Yellow Book of August 1984) replaced the Task Force report's 1984 date for commencement of fishing in Region B with that of 5 January 1983 (for Criterion B). On the other hand the Final Plan (including amendments of March 1985), under a newly-introduced Criterion D, qualification exists for Region B if (1) the boat concerned had fished commercially in Region B in the period 1 January 1983 to 16 January 1984 and (2) it qualified for the South Western Sector. To have qualified for the South Western Sector under its Criterion B it required to have begun fishing in the South Western Sector by 31 July 1985. Mr. Robinson could not then meet the first of those requirements; and (by not commencing fishing in the South Western Sector by 31 July 1985) failed by a few weeks to meet the second being the qualification for the South Western Sector.

82. When that Task Force Report became available in 1984, Mr. Robinson had committed $150,000 to his project of intended fishing in two Zones. His total commitment was $250,000.

83. There are thus a number of features (those set out in the preceding three paragraphs), which appear to be peculiar to Mr. Robinson's application and which tend to set it apart from other cases. No doubt hardship of varying degrees was caused to a number of fishermen by the manner in which closure and management of the fishery necessarily had to take effect by reference to dates preceding the implementation of the Scheme finally decided upon. But the hardship caused to Mr. Robinson appears to involve features additional to those affecting the industry overall and to distinguish it from that incurred by others. We consider that the inequity with which the introduction of the Plan visited Mr. Robinson's valid ambition and intentions, was not in the circumstances, sufficiently ameliorated by the exercise of discretion in his favour to grant him a licence endorsement to fish only in the South Western Sector; and that because of the special circumstances canvassed above, they being of such weight and cogency as to justify variation from the General Plan (see Bremner v. Domalewski (1956) (N.S.W.) SR 244), he should have been granted endorsements for both the South Western Sector and Region B of the Eastern Sector.

84. We propose therefore to set aside the decision the subject of review and to direct that the applicant be granted endorsements to his licence to allow his fishing boat FV UJB to fish in both the South Western Sector and Region B of the Eastern Sector of the SETF.