Case: Re Green and Australian Fisheries Management Authority [2004] AATA 426 ; (2004) 81 ALD 194
Outcome: referred to
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. Nevertheless, so the submissions of Mr Rhodes continued, 'the OCS Memorandum of Understanding contemplates the fishery will be managed by determination of total allowable catch for quota species, allocation of that TAC quota to permit holders and making such quota transferable' , Mr Rhodes referring generally again to clauses 14 to 16 of the Memorandum of Understanding of 17 November 2000, and to page 11 of the Southern Shark Fishery 2001 Management Arrangements of January 2001 appearing under the heading 'Is Quota Transferable?'. That begs the issue as to restrictions imposed elsewhere in relation to the permit holders to be the subject of such allocations. It was submitted further by Mr Rhodes in the present context that '[a]part from the 2003 Management Plan and the OCS arrangements, there was no evidence before the AAT of any promulgated policy of the Minister or AFMA to refuse applications for fishing permits in the SESS Fishery'; it was said by Mr Rhodes in that regard that '... cases such as Re Green and Australian Fisheries Management Authority [2004] AATA 426 ; (2004) 81 ALD 194 are distinguishable'. To provide a brief key to an understanding of the ratio in Re Green, I extract below the headnote, which would at least not seem to lend support to Mr Rhodes' contention in that regard: relevant AFMA policy did not have the status of Ministerial policy, or policy adopted by a body such as the Australian Fisheries Council comprising the relevant Commonwealth and state ministers. However, the policy was settled and adopted by the AFMA board after consultation with key stakeholders, and should be given great weight by the tribunal and should be applied unless it was unlawful or unless there were cogent reasons militating against its application in the circumstances of the particular case.' It was acknowledged by Mr Rhodes that '[w]hen determining the quota to be allocated to individual fishing permits, considerations of management by way of the TAC [ie total allowable catch] quota, and environmental concerns invoking the precautionary principle, may well be relevant', and I was referred in that regard to AFMA's letter of 12 November 2003 to Mr Rhodes, which concluded with AFMA's statement of an inability '... to reinstate your fishing permit 26978' , to which letter I have already referred in some detail. However there additionally appeared in that letter the further statement that '[l] imiting the number of operators in a fishery has been widely adopted through the world as a necessary first step in any management of fisheries resources' . AFMA furthermore cited 'Technical Guidelines for responsible fisheries 4' , being a United Nations Food and Agriculture Organisation's 1997 publication, which contained reference to the factor that '... limited access is widely considered to be essential for efficient and responsible fisheries' . In the same context, AFMA further cited the 1992 'Inter-governmental Agreement on the Environment' , entered into by the Commonwealth, State and Territory Governments in Australia, where in par 3.5.1 the following appeared: there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation... .' It was in the context essentially of what I have summarised in the present segment of these reasons that Mr Rhodes contended boldly that '[i]t was inconsistent with the objectives of the [Management Act], the SESS Management Plan and the OCS arrangements to refuse Mr Rhodes' application on the basis that he was, at the time of the application, not the holder of a current permit'. I have experienced considerable difficulty in distilling any such themes of assistance from those materials in favour of Mr Rhodes' contentions propounded by counsel, and which I have sought to summarise or reproduce in these reasons.