Case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Outcome: discussed
v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 1220 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 (8 September 2006) Last Updated: 11 September 2006 FEDERAL COURT OF AUSTRALIA Rhodes v Australian Fisheries Management Authority [2006] FCA 1220 ADMINISTRATIVE LAW review of decision of AAT which affirmed decision of Australian Fisheries Management Authority to cancel fishing permit relating to Southern Shark Fishery in Bass Strait region interpretation of 2003 Southern and Eastern Scalefish and Shark Fishery Management Plan and Offshore Constitutional Settlement to extent either imposed 'limited entry' or 'no new permits' policy whether Tribunal erred in finding as relevant to refusal to grant fishing permit enforcement of AFMA's cost recovery procedures claim of denial of natural justice in relation to processes implemented by Australian Fisheries Management Authority up to time of cancellation of applicant's fishing permit Fisheries Management Act 1991 (Cth) ss 17 , 32 , 38 , 39 Administrative Appeals Tribunal Act 1975 (Cth) Offshore Constitutional Settlement Southern and Eastern Scalefish and Shark Fishery Management Plan 2003 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 discussed Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 discussed Re Green and Australian Fisheries Management Authority [2004] AATA 426 ; (2004) 81 ALD 194 referred to Legione v Hateley [1983] HCA 11 ; (1983) 152 CLR 406 discussed Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 ; (1963) 113 CLR 475 discussed National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29 ; (1984) 156 CLR 296 referred to R v Small Claims Tribunal and Homewood; Ex parte Cameron [1976] VR 427 referred to Cameron v Cole [1944] HCA 5 ; (1943) 68 CLR 571 referred to Hoskins v Van Den-Braak (1998) 43 NSWLR 290 referred to Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28 referred to Gribbles Pathology (Vic) Pty Ltd v Cassidy [2002] FCA 859 ; (2002) 122 FCR 78 discussed DAVID JOHN RHODES v AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY TAD 31 OF 2005 CONTI J 8 SEPTEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY TAD 31 OF 2005 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY ASSOCIATE PROFESSOR DAVIS BETWEEN: DAVID JOHN RHODES Applicant AND: AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY Respondent JUDGE: CONTI J DATE OF ORDER: 8 SEPTEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The application for review by way of appeal from the decision of the Administrative Appeals Tribunal made on 27 July 2005 be dismissed. In reaching those conclusions, it becomes perhaps unnecessary for me to consider, in the circumstances postulated by Mr Rhodes, the scope of operation of the general law relating to the formation and promulgation of Ministerial policy as a guide to the exercise of administrative discretion. Nevertheless I would record in that context the principles restated by Brennan J (as then President of the AAT) in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 640, as follows: are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process. course, a policy must be consistent with the statute. It must allow the Minister to take into account the relevant circumstances, it must not require him to take into account irrelevant circumstances, and it must not serve a purpose foreign to the purpose for which the discretionary power was created. A policy which contravenes these criteria would be inconsistent with the statute....' Reference may also be made in that regard to Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 206, where French and Drummond JJ, referring to Re Drake, observed as follows: place of government policy in the Tribunal's decision-making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other. But its decision must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy.' Purportedly by way of reply, Mr Rhodes contended that AFMA did 'not point to any properly articulated statement as to what is said to be its "limited entry" policy, in a form that the AAT or this Court can properly assess such a policy: as being lawful by reference to the structure and operation of the [Management Act]; and as being applicable to the circumstances of Mr Rhodes.' I do not think that to be correct. In any event, upon that somewhat sweeping and unspecific footing, Mr Rhodes contended that '[t]here is therefore no policy within the scope of Drake ' and further that '[t]o the extent such a policy might be implied from various matters found in the evidence... such a policy when properly construed does not treat [Mr Rhodes] as a "new entrant" in any relevant sense'. I have difficulty in distilling the implications of either contention. The policy is articulated or reflected both explicitly and implicitly for instance in the provisions of sections 7(5)(1)(j) and 62(4). The objective circumstances were that Mr Rhodes did not tender payment of the management levy of $400.00 at any material time, his fishing permit relating to the period of time from 1 March 2001 to 31 December 2001 was suspended on 9 May 2001 and cancelled on 12 July 2001. After those events had occurred, Mr Rhodes merely forwarded to AFMA a form of application for fishing permit, and did so without any tender of payment of fees. It was next asserted by Mr Rhodes that '[n]othing can be taken from the events prior to the OCS arrangements (1985 to 2001) in relation to boat and net numbers as affecting [Mr Rhodes]', and that '[w]hatever policy may have been in place, it was expressly overridden by the OCS transfer of jurisdiction from Tasmania to the Commonwealth'. The first limb of that assertion was not seemingly supported in relation to either boat numbers or fish net numbers, and the second limb purportedly propounded a proposition without any apparent, much less reasoned, support. It was then asserted by Mr Rhodes that 'OCS arrangements required the Commonwealth to treat Tasmanian fishermen on a fair and equitable basis with Commonwealth fishers', and further that the same 'expressly permitted Tasmanian Shark Gill Net and Hook fishermen to apply for a Commonwealth fishing concession'. Those provisions originated in the Memorandum of Understanding of 17 November 2000, clause 12(g) thereof reading as follows: ensuring individual fishers in a fishery, who come under the Commonwealth's jurisdiction as a result of OCS arrangements, are treated on a fair and equitable basis with all other fishers in the school shark and gummy shark fishery.' However that opportunity for equal participation was not open-ended at least in the sense of accommodating prospective or aspirational entrants. Thus clause 14 of the Memorandum of Understanding, under the sub-heading 'Commonwealth School Shark and Gummy Shark Management', required 'listed fishers' within '60 days, from notification, to apply for a Commonwealth shark fishing concession' , and clause 15 thereof recorded that 'AFMA has taken a decision, in accordance with its legislative objectives, that school shark and gummy shark will be managed by determining the total allowable catch... of each species, allocating the Commonwealth component of the TAC to individual Commonwealth fishing concession holders as individual quota and making this individual quota transferable'. Moreover clause 16 stipulated for '[t]he initial allocation mechanism to apportion the TAC of school shark and gummy shark... sectors within the Southern Shark Fishery', and for '... the appropriate formula(e) for the allocation of Individual Transferable Quotas... for school shark and gummy shark amongst Southern Shark Fishery permit holders within each of the sectors...' , pursuant to recommendation 'by an independent allocation advisory panel, which was charged with the task of recommending a result which ensures that all operators in the fishery are treated on a fair and equitable basis in the allocation process...' . However so much did not declare or envisage contextually that the allocation process would remain open to newcomers, if otherwise qualified to apply as 'licensed fishers' , subsequent to the operation of '[t]he initial allocation mechanism' .