Case: Fischer and Australian Fisheries Management Authority, Re; Tapley and Australian Fisheries Management Authority, Re; [2005] AATA 936 ; (2005) 41 AAR 417
Outcome: discussed
buy-back scheme was introduced in 2001 and, under the scheme, the Commonwealth made offers to buy back fishing permits held by operators who did not wish to participate in the move from regulation by input controls to regulation by output controls. The buy-back scheme was described by Downes J in Re Fischer and Australian Fisheries Management Authority ; Re Tapley and Australian Fisheries Management Authority [2005] AATA 936 ; (2005) 41 AAR 417 , a decision I discuss below, in the following terms (at 431 [67]): "There was, however, a legal market which does provide some evidence of market value. Prior to the introduction of quotas, operators were given the opportunity to take part in a buy-back scheme. AFMA established an adjustment assistance program for those who did not wish to change to the proposed scheme of output controls. Under the scheme operators were paid $8000 per gillnet unit for gillnet permits and $25 per hook for hook permits. Forty permit holders took part in the scheme. They gave up their fishing permits but they retained the right to allocation of quota. However, the quota could not be utilised otherwise than by transfer or by acquisition of a fresh fishing permit. Under the new scheme the quota allocated could be sold to someone with a permit. Although the buy back does not amount to an open market it was voluntary and does provide some evidence of the value of permits severed from the quota entitlements about to be introduced. I note that at the time of the buy-back the Jenkinson panel had already announced its proposal that quota should be based on catch history." The first respondent was one of the forty permit holders who participated in the buy-back scheme which was known as the Southern Shark Industry Development Program. His participation in the scheme included an application by him dated 6 February 2001 to surrender his fishing permit in the Southern Shark Fishery pursuant to s 32(9) of the FM Act. On the same day, that is, 6 February 2001, the first respondent executed a Deed of Release. The application by the first respondent to surrender his permit contained the following: "I acknowledge that the effect of this surrender is that my having held a permit in the Southern Shark Fishery and South East Non Trawl Fishery will not be a consideration in any future decision by AFMA in relation to an application by me for a permit in this fishery. I further acknowledge that my having held permits in the Southern Shark Fishery and South East Non Trawl Fishery or the catch history associated with such permits, will not be a consideration in any allocation of quota decisions apart from decisions in relation to the grant of quota for school shark and gummy shark." Mr Horst Fischer and Mr Graham Tapley applied to the Tribunal for review of the quota allocations allocated to them for the 2004 calendar year. Their ground was that "the decision should have allocated quota wholly by reference to the permit itself, taking no account of catch history, or should have placed much less emphasis on catch history" ( Re Fischer and Australian Fisheries Management Authority ; Re Tapley and Australian Fisheries Management Authority [2005] AATA 936 ; (2005) 41 AAR 417 at 421 [12] per Downes J). I will refer to this proceeding as the Fischer No 2 proceeding. The first respondent was added as a party to the application for review. Downes J expressed his conclusions on the review as follows (at 438-439 [107]): "Two applications are before the Tribunal. They challenge quota allocations for the year 2004 for gummy and school shark allocated to Horst Fischer and Graham Tapley. No grounds specific to Messrs Fischer and Tapley are relied upon. Messrs Fischer and Tapley say that the quota should not be determined by reference to the quantity of shark they had caught in the past. They say that equal quota should be awarded to all operators holding the same permits. I have found that the quota system under review by which quota calculations are based partly upon equality between permits, representing the right to fish, or access entitlement, and partly upon catch history, is the preferable way to allocate quota. I have also found that the way the two have been integrated are the appropriate and preferable methods." As to the first respondent, Downes J said (at 436 [88]): "Trevor Gilmore took part in the buy-back. Under the Fischer and Tapley proposal he would not be entitled to any quota because he no longer has a permit. Persons who took part in the buy-back were informed they would be entitled to quota. The quota allocation under review will give persons such as Mr Gilmore an entitlement to quota although less than under the Jenkinson Panel scheme. The system under review seems to me to be appropriate for persons who took part in the buy-back." The events leading up to the decision made by the Authority are as follows. By a notice in the Commonwealth Gazette of 21 December 2006, the Authority invited interested persons to apply to be registered as eligible persons for the grant of SFRs for shark species under the Management Plan. The notice was given under s 24 of the FM Act. After the registration period had closed, a register of persons eligible for the grant of SFRs was finalised.