CATCHWORDS

ADMINISTRATIVE LAW - appeal from decision of Administrative Appeals Tribunal - appeal based on failure of policy applied by original decision-maker to take relevant consideration into account - quotas for taking of species of fish originally determined by reference to boat units and catch history of vessel - boat units designed to reflect investment in boat and equipment - later all vessels operating in fishery assumed to have equal number of boat units - quotas determined upon catch histories alone - Authority obliged to take into account maximising of economic efficiency in the exploitation of fisheries resources - whether allocation of quota to respondent's vessel had regard to that matter - point relied upon not taken before Tribunal - whether respondent's remedy appeal from Tribunal or application for judicial review.

Fisheries Management Act 1991, ss.3, 17, 18, 19, 21, 32, 46, 47, 48, 49, 165.

Fisheries Act  1952 (now repealed)

Seas and Submerged Lands Act 1973, ss.10A, 10B, Proclamation made pursuant to s.10B on 26 July 1994.

Administrative Appeals Tribunal Act 1975, s.44

Administrative Decisions (Judicial Review) Act 1977, paras 5(1)(e), 5(2)(b) and (f).

Australian Fisheries Management Authority v P.W. Adams Pty Ltd

No. G815 of 1995

CORAM:    SHEPPARD J, TAMBERLIN J, LEHANE J

PLACE:    SYDNEY

DATE:     18 DECEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA)

                                  )

NEW SOUTH WALES DISTRICT REGISTRY)    No. G815 of 1995

                                  )

GENERAL DIVISION                  )

                        BETWEEN:  AUSTRALIAN FISHERIES

                                  MANAGEMENT AUTHORITY

                                      Applicant

                        AND:      P.W. ADAMS PTY LTD

                                      Respondent

                      MINUTES OF ORDER

CORAM:    SHEPPARD J, TAMBERLIN J, LEHANE J

PLACE:    SYDNEY

DATE:     18 DECEMBER 1995

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant pay to the respondent its cost of the appeal.

NOTE:     Settlement and entry of orders is dealt with in

          Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

                                  )

NEW SOUTH WALES DISTRICT REGISTRY)    No. G815 of 1995

                                  )

GENERAL DIVISION                  )

  On appeal from a Judge of the Federal Court of Australia

                        BETWEEN:  AUSTRALIAN FISHERIES

                                  MANAGEMENT AUTHORITY

                                      Applicant

                        AND:      P.W. ADAMS PTY LTD

                                      Respondent

CORAM:    SHEPPARD J, TAMBERLIN J, LEHANE J

PLACE:    SYDNEY

DATE:     18 DECEMBER 1995

                    REASONS FOR JUDGMENT

SHEPPARD J:   This is an appeal from the judgment of a judge of this Court (Sackville J) in which his Honour ordered that the decision made by the Administrative Appeals Tribunal ("the Tribunal") on 23 August 1995 be set aside and the matter remitted to the Tribunal for determination according to law.  Additionally, his Honour made two declarations which are in the following terms:

     "The Court:

     1.   Declares that, in affirming the decision made by the delegate of Australian Fisheries Management Authority on 31 March 1994, the Administrative Appeals Tribunal erred by giving effect to a policy which failed to take into account a relevant consideration, namely, the objective in s.3(1)(c) of the Fisheries Management Act 1991 (Cth) of maximising economic efficiency in the exploitation of fisheries resources.

     2.   Declares that, in affirming the decision made by the delegate of Australian Fisheries Management Authority on 24 July 1995, the Administrative Appeals Tribunal erred by giving effect to a policy which failed to take into account a relevant consideration, namely, the objective in s.3(1)(c) of the Fisheries Management Act 1991 (Cth) of maximising economic efficiency in the exploitation of fisheries resources."

     Two decisions of the Tribunal are involved.  The first was made on 4 November 1994 and the second on 23 August 1995.  The decisions reviewed by the Tribunal affirmed decisions of the appellant itself to affirm decisions made by its officers not to vary certain conditions attached to fishing permits granted the respondent for the 1993, 1994 and 1995 years.  As will be seen from the terms of the two declarations, his Honour concluded that the decisions made by the Tribunal disclosed error of law because the Tribunal had given effect to a policy which failed to take into account a relevant consideration, namely, the objective in para. 3(1)(c) of the Fisheries Management Act 1991 ("the Act") of maximising economic efficiency in the exploitation of fisheries resources.

     The question to be determined in this appeal is whether his Honour was correct in reaching this conclusion.  At this point, it is appropriate to mention that the ground upon which his Honour upheld the appeals to him is the ground provided for in paras 5(1)(e) and 5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act").  In short his Honour found that the making of the decisions was an improper exercise of the power conferred by the Act in pursuance of which it was purported to be made because the decision failed to take a relevant consideration into account.  Reference may also be made to para. 5(2)(f) which, when read in conjunction with para. 5(1)(e), provides for the review of a decision in a case where there has been an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.  That does not seem to be relevant here although, on the approach adopted by his Honour, there was involved the application of a policy and the omission from that policy of a relevant consideration.

     The significance of these matters is that his Honour has allowed the appeal on what may be described compendiously as administrative law grounds.  But that does not mean that the proper course for the respondent to have taken was to make an application under the Judicial Review Act or pursuant to s.39B of the Judiciary Act 1903.  It is open to an applicant for relief who claims administrative error by the Tribunal to seek that relief under s.44 of the Administrative Appeals Tribunal Act 1975 ("the Administrative Appeals Act").  Indeed, Davies J held in Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483 that s.44 of the Administrative Appeals Act provides the appropriate course for a person aggrieved to follow even though the grounds of appeal may encompass grounds provided for in s.5 of the Judicial Review Act such as the failure to take into account a material consideration; see at 484.  Davies J appeared to take the view that that was usually the only course which a person aggrieved in those circumstances had available to him.  He referred to David Jones Finance & Investment Pty Ltd v Commissioner of Taxation (1991) 28 FCR 484.  I would not myself wish to state the position so inflexibly.  It is not necessary to decide the matter in this case.  It is enough to say that I respectfully agree with Davies J in his view that it is certainly open to an applicant for relief to pursue grounds of appeal based on administrative law grounds in an appeal under s.44 of the Administrative Appeals Act.

     It should be understood, however, that the appeal is from the Tribunal and not from any decision of the original decision-maker.  If the real matter about which an applicant complains is to be found only in the decision of the original decision-maker, the remedy will not be an appeal to the Tribunal but an application under the Judicial Review Act or pursuant to s.39B of the Judiciary Act.  That is because the decision complained of will not be the decision of the Tribunal but the decision of the original decision-maker.  It is possible in this case that that will provide a problem for the respondent because the point upon which the respondent succeeded before his Honour and seeks to uphold his Honour's judgment before us, was not argued before the Tribunal.  It was taken for the first time before his Honour and the error, if there be an error, is reflected in the original decisions and not expressly in the Tribunal's decision.  I shall say more of this in due course.  The matter was not the subject of discussion during the argument in this appeal.

     In order to deal with the issues which arise for decision, it is necessary to refer at some length to the provisions of the Act, the evidence and the decisions both of the Tribunal and of Sackville J.  Section 3 of the Act has the heading "Objectives" and is as follows:

     "    3.   (1)  The following objectives must be pursued by the Minister in the administration of this Act and by AFMA in the performance of its functions:

          (a)  implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and

          (b)  ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development, in particular the need to have regard to the impact of fishing activities on non-target species and the marine environment; and

          (c)  maximising economic efficiency in the exploitation of fisheries resources; and

          (d)  ensuring accountability to the fishing industry and to the Australian community in AFMA's management of fisheries resources; and

          (e)  achieving government targets in relation to the recovery of the costs of AFMA.

          (2)  In addition to the objectives mentioned in subsection (1), or in section 78 of this Act, the
Minister, AFMA and Joint Authorities are to have regard to the objectives of:

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

          (b)  achieving the optimum utilisation of the living resources of the AFZ;

     but must ensure, as far as practicable, that measures adopted in pursuit of those objectives must not be inconsistent with the preservation, conservation and protection of all species of whales."

     The acronyms "AFMA" and "AFZ" are defined in s.4 to mean respectively the Australian Fisheries Management Authority, i.e. the appellant ("the Authority"), and the Australian fishing zone.  The Australian fishing zone is defined to mean the waters adjacent to Australia within the outer limits of the exclusive economic zone and the waters adjacent to each external territory within the outer limits of the exclusive economic zone but does not include coastal waters of, or waters within the limits of, a State or internal Territory or waters which are excepted waters.  "Exclusive economic zone" is defined to mean the exclusive economic zone within the meaning of the Seas and Submerged Lands Act 1973 adjacent to the coast of Australia or the coast of an external territory; see ss.10A and 10B of that Act and the proclamation made on 26 July 1994 pursuant to s.10B.  Effectively this means, in the case of the States,  the coastal waters from a distance of three nautical miles from the shore to 200 nautical miles from the shore.  The position is not quite the same in relation to the Northern Territory or the external territories.

     There are a number of other definitions in s.4.  It is unnecessary to refer to the detail of any of these except to say that the expression "Joint Authority" used in subsec. (2) is defined to mean an authority established by or under s.61.  Section 61 is in Part 5 of the Act which deals with co-operation with the States and the Northern Territory in the management of fisheries.  Part 5 of the Act did not commence until 3 February 1995; see the Fisheries Legislation (Consequential Provisions) Act 1991, subsec. 7(3) and the Primary Industries and Energy Legislation Amendment Act 1993, s.24.  Paragraph 78(3)(c), which is in Part 5 of the Act, provides that a joint authority must pursue objectives similar to those provided for in s.3 including the maximising of economic efficiency in the exploitation of fisheries resources.  I mention the provision only because it is in the same terms as para. 3(1)(c) of the Act which is directly in question in this case.  But the use of similar language in para. 78(3)(c) does not have any but incidental relevance to the matters to be decided in this appeal.

     Part 3 of the Act is entitled "Regulation of Fishing".  Section 17, which is in Part 3, provides that the Authority may, in writing, after consultation with such persons engaged in fishing as appear to the Authority to be appropriate and after giving due consideration to any representations mentioned in subsec. (3) of the section, determine a plan of management for a fishery.  Subsection 17(2) provides for the taking of certain procedural steps by the Authority before determining a plan of management for a fishery and subsec. 17(3) that a person may, not later than the date specified in the notice referred to in subsec. 17(2), make representations to the Authority in connection with the draft plan.  The notice, by subsec. 17(4), is to be published in the Gazette and in newspapers referred to in the subsection.  Subsection 17(5) provides that a plan of management for a fishery is to set out the objectives of the plan of management, measures by which the objectives are to be attained, and performance criteria against which the measures taken may be assessed.  There are further provisions of s.17 but it is unnecessary to refer to them. 

     By s.18, when the Authority has determined a plan of management for a fishery, it must submit the plan to the Minister and inform the Minister of the nature of any representations it has received and the consultations it conducted before determining the plan.  Subsection 18(2) provides for the acceptance of the plan by the Minister.  By s.19 the Authority is to publish in the Gazette, in respect of each determination made under s.17 and accepted by the Minister, notice of the fact that the determination has been made and the place or places where copies of the determination can be obtained.  Subsection 19(5) provides that a determination is taken to be an enactment for the purposes of the Administrative Appeals Act.

     Division 3 of Part 3 provides for the nature of a statutory fishing right.  It is unnecessary to go to the detail of this but it may be mentioned in passing that s.21 provides that each of a number of specified rights is "a separate statutory fishing right".  The rights include a right to take a particular quantity of fish, or to take a particular quantity of fish of a particular species or type, from a particular area in a managed fishery and a right to a particular proportion of the fishing capacity that is permitted, by or under a plan of management, for, or for a part of, a managed fishery.  The expression "managed fishery" is defined to mean a fishery to which a plan of management relates. 

     Section 22 provides that, where a plan of management provides for the management by the Authority of a fishery by means of a system of statutory fishing rights, the Authority is to establish and administer such a system in accordance with the plan.  A person to whom the Authority grants a fishing right is to be given a certificate evidencing the grant of the right.  The right is granted subject to conditions which include conditions that the holder of the right must comply with any obligations imposed on the holder of the right by the relevant plan of management or by the Authority.

     Division 4 of Part 3 provides for the ways in which statutory fishing rights may be granted.  It is unnecessary to refer to the provisions of that Division.  Division 5 of Part 3 provides for fishing permits.  Section 32, so far as material, is as follows:

     "    32.  (1)  AFMA may, upon application made in the approved form, grant to a person a fishing permit authorising the use of a specified Australian boat by that person, or a person acting on that person's behalf, for fishing in a specified area of the AFZ or a specified fishery.

          (2)  An application made for the grant of a fishing permit must provide AFMA with such information as it reasonably requires for a proper consideration of the application.

          (3)  Without limiting the operation of subsection (1), AFMA may refuse to grant a fishing permit if it has reason to believe that a requirement of a law of the Commonwealth, or of a State or Territory, has not been complied with in relation to the boat.

          (4)  A fishing permit may authorise the use of a boat:

          (a)  for commercial fishing generally; or

          (b)  for recreational fishing generally; or

          (c)  as a charter boat; or

          (d)  for specified fishing activities, including:

              (i)       the carrying of fish; or

              (ii)      the processing of fish; or

              (iii)     the testing of fishing equipment."

     Subsection 32(5) provides for a number of conditions subject to which fishing permits are granted.  The principal of these provide for conditions to be attached to fishing permits authorising fishing in a specified managed fishery.  Those conditions are not applicable in the present case because, there being no relevant plan of management, the permits were not issued for fishing in a managed fishery.  Subsection 6 provides, inter alia, that a fishing permit is subject to such other conditions as are specified in the permit or are prescribed in relation to permits granted under s.32.  Subsection 32(7) provides that the conditions which may be specified in a permit include conditions relating to:

     (a)  the fish that may be taken; or

     (b)  the quantity of fish that may be taken; or

     (c)  the rate at which fish may be taken; or

     (d)  the methods or equipment that may be used to take fish; or

     (e)  the methods of equipment that may be used to process or carry fish.

     Part 4 of the Act provides for the register of statutory fishing rights.  By s.44 the Authority is to keep a register of statutory fishing rights.  Section 45 provides for the information to be included in the register.  Section 46 provides for the creation of interests in fishing rights.  So far as material, the section is as follows:

     "    46.  (1)  This section applies to a dealing that would, but for subsection (2), have the effect of creating, assigning, transferring, transmitting or extinguishing an interest in a fishing right.

          (2)  The dealing has no effect of a kind mentioned in subsection (1) until it is registered under this section.

          (3)  A party to the dealing may lodge with AFMA:

          (a)  an application in the form approved by AFMA for registration of the dealing; and

          (b)  the instrument evidencing the dealing; and

          (c)  an instrument setting out such particulars (if any) as are prescribed for the purposes of an application for registration; and

          (d)  one copy each of the application and of the instruments mentioned in paragraphs (b) and (c).

          (4)  Where an application to AFMA is so made AFMA must:

          (a)  register the dealing by entering in the Register the following particulars:

              (i)  the name of the person acquiring the interest in the fishing right;

              (ii)a description of the dealing; and

          (b)  endorse on the instrument evidencing the dealing and the copy of that instrument the fact of the entry having been made together with the date and time of the making of the entry."

     Section 47 provides that notice of any kind of trust relating to a fishing right is not receivable by the Authority and must not be registered.  Section 48 provides for the "power" of the holder of a fishing right to deal with it.  The section provides that, except where a condition of a fishing right provides otherwise, the holder of a fishing right may, subject to any rights appearing in the register to be vested in another person and to s.49, deal with the fishing right as its absolute owner and give good discharges for any consideration for any such dealing.  The provision only protects a person who deals with such a holder as a purchaser in good faith for value and without notice of any fraud on the part of the holder.  Equities in relation to a fishing right may be enforced against the holder of a fishing right except to the prejudice of a person protected by the provisions of the section concerning holders who are purchasers for value in good faith and without notice of fraud.  Section 49 provides for the circumstances in which the approval of the Authority is required in relation to dealings referred to in s.48.

     The respondent is a family-owned sawmilling company.  In 1989, the directors (one of whom was an experienced fisherman) decided to invest in a fishing boat.  The boat selected was the Wellington Cape which is a Danish seine trawler.  The vessel has a steel hull, is about 16 metres in length and weighs about 35 tonnes.  The main target fish for Danish seiners are flathead and school whiting which are caught in relatively shallow waters.  The respondent entered into an agreement with the former owners of the Wellington Cape on 19 September 1989.  The agreement provided for the purchase of the vessel and its licences, including its Commonwealth Boat Fishing Licence.  The price paid for the vessel was $380,000 which included a component of $3,500 per unit for the 81 hull and engine ("boat units") units allocated to the vessel, that is, $283,500.  I shall explain the expression "boat units" a little later.

     Each decision made by the Authority related to the issue of a fishing permit, subject to conditions, authorising the respondent to use a boat known as the "Wellington Cape" for commercial fishing in the South East Fishery.  I shall refer to the area known as the South East Fishery a little later on. The first permit was issued for the 1993 calendar year and the second for the 1994 calendar year.  The Tribunal dismissed the application to review the Authority's decision relating to the 1993 permit on jurisdictional grounds.  It affirmed the Authority's decision relating to the 1994 permit.  The second appeal was from a decision of the Tribunal, given on 23 August 1995, in which the Tribunal affirmed a decision by the Authority not to vary the quota conditions attached to the 1995 permit issued in relation to the Wellington Cape.  The hearing of the second appeal was expedited in order to give the respondent the opportunity to have the matter resolved before the end of the 1995 calendar year.

     The fishing permit for the 1994 year was issued on 8 February 1994.  It was in respect of the period 1 January 1994 to 31 December 1994.  It was expressed to be issued pursuant to subsec. 32(1) of the Act.  It purported to grant a fishing permit under that section to the respondent for commercial fishing from the Wellington Cape, the home port of which was Lakes Entrance in Victoria.  The permit was subject to conditions specified in Schedule 4.  Table 1 of that Schedule authorised the taking of 24,428 units (29,802 kilograms) of flathead and 29,644 units (30,533 kilograms) of school whiting.  There were other conditions stated in Schedule 4 but it is unnecessary to refer to these.  The permit for the 1995 year was in broadly similar terms.  I do not refer to the detail of it.  The activity authorised was "Commercial Fishing South East Trawl Trawling" and the conditions were not in all respects identical with those imposed in relation to the 1994 permit.  The quantities of flathead and school whiting were somewhat larger, but not significantly so.  I have not referred to the 1993 permit because it is only of indirect relevance to the outcome of the appeal.

     Each of the decisions made pursuant to s.32 of the Act was the subject of an application for internal review made pursuant to s.165 of the Act.  The request for review was based on dissatisfaction with the amount of the quotas in each case.  The Authority was requested to increase them to take account of the "special circumstances" of the respondent based principally upon the vessel having been engaged in shark fishing in previous years and thus not being able to demonstrate a catch history which would have entitled it to a larger quota.  Another of the grounds relied upon by the respondent was that the allocation formula used was, in the circumstances of the respondent, unfair and resulted in significant financial disadvantage.  The delegate who decided the matter said in relation to this ground:

     "The management of virtually all fisheries is an evolving process and operators learn to live with relatively frequent change.  There is therefore always a risk that a change to the management rules may impact adversely on any investment in the fishing industry.  However, there is also a reasonable expectation on the part of operators, that any such changes will be equitable and will, to the greatest extent possible, impact equally on all participants.

     In August 1989 the market value of access rights in the SET [the South East Trawl area] was determined by the number of boat units held.  The 'Wellington Cape' was an 81 unit boat.  However, while boat units provide a measure of control over boat size and engine power they do not truly reflect the fishing capacity of individual boats and skippers.  A quota allocation formula based on boat units only would mean that to maintain their past catch levels the more efficient operators would be forced to buy additional quota from the less efficient, resulting in windfall gains to the latter.  To avoid this an allocation formula based on a combination of boat units and 'catch history' was used.  The immediate result of this was that there was a significant re-ordering of individual 'shares' in the fishery.

     Two further decisions influenced the individual quota 'shares' that were allocated; one was the proportion that catch history and boat units respectively contributed to quota allocation, the other was the length of the qualifying period selected.  Variations to either of these could substantially influence the quota allocated to each operator.  In the event, in the case of Danish seine fishermen, the proportions selected were 70% catch history and 30% boat units, while the qualifying period was the best 5 of the 6 years 1984 to 1989.

     The decision to base quota allocation on other than boat units only meant that there was a significant change to the pre-existing 'shares' in the fishery - with some winners and some losers.  In selecting an allocation formula based on boat units and catch history rather than boat units only the intention was clearly to give some recognition to above average operators."

     The delegate went on to say that the fact that this method of allocating quota would result in some anomalies must have been recognised when the decision to use it was made.  Notwithstanding this and while recognising its shortcomings, the original decision to use the 70/30 per cent catch history/boat unit weightings and the 1984-1989 qualifying period was, in each case, confirmed by the delegate as the most equitable manner of allocating quota in the fishery.  The delegate added that part of the reluctance to change was undoubtedly because any attempts to rectify existing anomalies would almost certainly create new ones.

     It is to be observed that nothing is said by the delegate concerning the decision, later to be referred to, to place all vessels on an equal footing so far as boat units were concerned.

     In the course of his judgment, his Honour said that the substance of the respondent's complaint on the appeals was that it had been disadvantaged because the quotas allocated to the Wellington Cape for flathead and school whiting were based on the vessel's catch history in the South East Fishery.  While the same approach had been taken in relation to similar vessels the Wellington Cape was disadvantaged because, during the relevant catch period, it had been used for much of the time to catch shark and not flathead or school whiting.  The respondent challenged the formula used to allocate quotas, and argued that the Tribunal fell into error in affirming the Authority's decision.  His Honour said that the principal basis of the challenge was that the policy reflected in the formula failed to take account of a relevant consideration, namely the objective of maximising economic efficiency in the exploitation of fisheries resources, which para. 3(1)(c) of the Act required the Authority to pursue in the performance of its functions.

     Prior to the coming into force of the Act, there was in force the South East Fishery (Individual Transferable Quota) Management Plan 1991 ("the 1991 Plan") which had been proclaimed in December 1991 pursuant to s.7B of the Fisheries Act 1952 ("the previous Act") which has been repealed.  The South East Fishery covers an area bounded by the Australian coast from Barrenjoey Point north of Sydney to the South Australian coast just east of Kangaroo Island at Cape Jervois at the foot of the Fleuriat Peninsula.  The fishery extends from three miles offshore out to the 200 mile limit of the Australian fishing zone.  It includes the waters around Tasmania.  The fishery exploits a large number of commercial species and is the main supplier to the Sydney and Melbourne markets.  It is divided into the eastern and western sectors, the eastern sector comprises the area out from the coast of New South Wales down to the Victorian border and then along the south east coast of Victoria to Lakes Entrance.  Its western and southern boundaries are respectively meridian of longitude 143^o40¢ east and parallel of latitude 40^o.  The eastern sector is very much smaller than the western sector.  The boundaries I have indicated are for the use of Danish seine gear.

     His Honour said that, because of pressures on fishing stock, measures had been taken to control the level of catch.  Management was introduced into the area in 1985 by means of fishing notices which limited access to the fishery to fishermen who held an appropriately endorsed Commonwealth Boat Licence.  The South East Trawl Management Advisory Committee ("the Committee") was set up in 1986 to provide for consultation between industry, scientists and managers.  The Committee now has statutory powers under the Act.  His Honour said that arrangements were formalised in the South East Trawl Preliminary Management Plan 1988 made under the previous Act. His Honour said that the arrangements under the plan were summarised in a paper prepared by the Authority.  Pursuant to it, endorsements were issued to fishermen who qualified on the basis of proven operation in the fishery during specified periods.  The endorsements were transferable and thus assumed a significant capital value.  The management arrangements introduced the concept of hull and engine units based on the size and power of the vessel.  The units were combined to form the applicable number of units in relation to a boat, which were transferable and thus had a trading value attached to them.  There were no controls on the levels of catch by endorsed vessels until specific controls were introduced for orange roughy in 1987 and gemfish in 1988.  The concept of boat units was introduced to limit the overall catching capacity of the fleet.  A boat could not operate in the fishery without the applicable number of units being assigned to it.  Boat units and endorsed licences did not of themselves limit or determine the catch that a particular boat could take.

     In 1992 controls on the levels of catch were extended to all quota species.  The maximum allowable catch for a particular species is known as the total allowable catch.  These have been set on an annual basis following advice from, and consultation with, the industry and scientists.  The object of setting these limits is to achieve or maintain a sustainable level of catch for a particular species.  The total allowable catch is divided into units.  Each boat issued with a permit is allotted a particular number of units.  Each year the kilogram equivalent of a unit is calculated and this multiplied by the number of units which a particular vessel has, determines the weight of a particular species of fish the vessel is entitled to take during the year.

     In May 1988 a working group of the Committee identified a number of options for the future management of the fishery.  An Australian Fisheries Council sub-committee prepared a report in December 1989, recommending that a system of Individual Transferable Quotas ("quotas") be introduced for the major commercial species in the fishery.  In April 1990, the then Minister announced that a quota system would be introduced.  This led to the proclamation of the 1991 Plan which, as mentioned earlier, was proclaimed in December 1991 pursuant to s.7B of the previous Act.  The 1991 Plan provided for the allocation of transferable quotas for named species, but restricted quotas to particular operators.  Generally speaking, the quotas were intended to be based on a combination of an operator's boat units and the vessel's verified catch history in the fishery during the period 1984 to 1989.

     In February 1992 a review committee was established to review management arrangements in the fishery.  Following its report, the Minister determined that an "averaging method" should be used to determine allocation of quotas for the remainder of 1992.  In essence, the averaging method employed a different technique for determining a vessel's catch history, thereby avoiding the statistical error incorporated in the previous market share method which had been invalidated by the decision of a Full Court of this Court in Minister for Primary Industries and Energy v Austral Fisheries Pty Limited (1993) 40 FCR 381.

     His Honour said that the 1991 Plan ceased to have effect after December 1992 on the expiration of licences granted under the former Act.  The current Act provides for the Authority to determine a plan of management for a fishery; see s.17 (supra).  But since the expiry of the 1991 Plan, no new plan has been determined by the Authority.  His Honour said that, instead, the Authority had managed the fishery using fishing permits issued under s.32 of the Act (supra).  Mr Rohan, who was the general manager of the Authority's Southern Fisheries Branch, who gave evidence before the Tribunal, said that this technique had been used as "an interim Management Plan until a new statutory Management Plan [was] implemented".

     On 8 December 1992, the Authority decided that fishing permits for 1993 should be granted only to persons who were eligible for and held quotas under the 1991 Plan.  The Authority also resolved that the quota entitlement available to operators was to be based on the results of the averaging method previously notified to operators but converted "to 1993 kilogram values".  The total available catches for 1993 for the controlled species of fish were determined by the Authority in December 1992.  On 9 December 1993 the Authority decided that fishing permits for the Fishery in 1994 should only be granted to individuals who were permanent holders of quota units in 1993.  The total available catches for 1994 were determined at the Authority's October 1993 meeting.

     His Honour said that the allocation of quotas to Danish seiners in respect of flathead and school whiting for the years 1993, 1994 and 1995 used a formula.  The formula allocated a weighting of 70 per cent to catch history and 30 per cent to boat units.  In practice all Danish seiners that satisfied a very low threshold requirement were uniformly allocated 100 boat units, regardless of size or capacity.  Thus the formula for the allocation of a quota relating to a species of fish depended in substance on an assessment of each vessel's catch history for that species during the relevant catch period.  In this regard it is apposite to refer to evidence given by Mr Rohan in the statement made by him for the purposes of the proceedings before the Tribunal, in which he said that quota allocation for Danish seine vessels was based on 70 per cent catch history and 30 per cent boat units.  In the calculation of the boat unit portion of the formula, all Danish seiners were considered to have an equal share.  The reason for this was that the special provisions which applied to the Danish seine fleet from 1987 allowed vessels to upgrade in size without obtaining more boat units.  Thus the boat units assigned to a particular boat might not have equated to the applicable number of boat units for that boat under the provisions of the 1988 Management Plan which was replaced by the 1991 Plan.  The effect of this was that, although boat units were retained in the formula used to calculate the percentage, and thus the quota in units and kilograms, of the total available catch for each vessel, all boats were placed on an equal footing and the reality was that quotas were in fact based upon catch history and upon that alone.  That is the genesis of the complaint which the respondent relied upon before his Honour and which his Honour upheld.

     As mentioned, the Wellington Cape up to the time it was purchased, had been involved in shark fishing.  This was shown by its verified catch record for the period 1984 to 1989.  In his Honour's judgment there is a table setting out the catch history of the vessel in relation to flathead, school whiting and sharks but I do not refer to it except to say that, for reasons which are not disclosed, the catch record for 1989 was low compared with the 1987 and 1988 years.

     His Honour said that the vessel had a special endorsement on its licence for shark fishing.  But the respondent's directors were aware that the endorsement would have to be surrendered and could not be transferred.  This was because of the provisions of the Southern Shark Fishery Management Plan 1988 which aimed to reduce the overall shark catch.  The result was that the vessel's catch history for flathead and school whiting was such as to place it at a disadvantage if quotas were allocated by reference, not merely to boat units, but to catch history over the whole of the qualifying period in relation to those species.

     Paragraph 11 of the 1991 Plan provided that the number of units of a specified species available for assignment to a person in respect of a relevant boat was to be determined on the basis of verified catch, boat units and a weighting factor given to each of these components.  Paragraph 11.3 provided that "the Manager" (as defined in clause 3 of the Plan - it is unnecessary to refer to the definition) should determine in respect of a boat which was a Danish seine boat, the number of units of a specified species available for assignment equal to the result of a formula which was set out in the paragraph.  It is unnecessary to refer to the detail of the formula except to say that one of its components was "a boat unit percentage component" calculated under subpara. 11.7.  Subparagraph 11.7 provides for another formula for the calculation of the boat unit percentage component for a specified species in respect of a Danish seine boat.  The 1991 Plan was amended three times, twice in October 1992 and once in December 1992.  The second of these amendments does not appear amongst the appeal papers.  No reference to the amendments was made in the course of the argument.  I have looked at the first and third of the amendments, but none of the provisions of these appear to be relevant to the questions to be decided in this appeal.

     In the course of his oral evidence, Mr Rohan said:

     "...my understanding, if you are seeking my understanding of the situation is, that it [the decision to treat each vessel as having the same number of boat units] has its roots in earlier management decisions where Danish Seine vessels were given approval to all upgrade when there were restrictions on the size of vessels applied to the fishery as a whole, including Otter Board trawlers, that the Danish Seine sector was given approval that each boat could be upgraded to 55 foot at the time in foot equivalent.  That earlier decision was carried forward into the allocation process, such that boats which hadn't upgraded by that time, and some boats had and some hadn't, such that boats which hadn't upgraded to the maximum of 55 foot would not be disadvantaged, so they were given in the allocation formula the opportunity to - or rather, the opportunity that they had was reflected in the allocations where they were all given units at that higher level."

     Mr Rohan's cross-examination proceeded for some pages after this answer.  The answers to the questions made by Mr Rohan appear to me to be confused and to reflect a lack of understanding of what in fact was being done in relation to boat units.  But eventually he said:

     "What I'm able to say is that I understand the formula as written and that formula speaks for itself.  The question I believe you're asking is what units were applied to that formula and the matter of boat units is defined in the earlier section of the plan under boat unit and unit and the difficulty I have answering you is what that meant both in this plan and the former plan and that is something which I am unable to respond to at this moment.  I would have to refer to the Act in a deeper and more timely way than I'm able to do at this very moment."

     Later Mr Rohan said that Danish seiners were allocated quota according to their unit holdings in the fishery.  The unit holdings were based on a formula which was described in the 1991 Plan but amended in subsequent decisions by the authority under "the current management arrangements".  Mr Rohan said that he found it difficult to say "in a few words" what the formula was.  But he added that the formula which applied in 1992 had been carried through "into the current arrangements" with amendments that had been agreed to by the Minister at the time and applied by the Authority and implemented by it.  He then referred to one of the Authority's publications.  The document is in evidence.  It is undated.  It bears the Authority's name and is entitled, "Original Boat Units for Danish Seiners - Lakes Entrance".  At the end of the document is a note which says that, for quota allocation purposes, all Danish seiners have a boat unit value of 100.  The document sets out the names of the Lakes Entrance vessels and assigns to each a number of boat units.  Twenty-two boats are involved and the number of units vary from as low as 34 to as high as 114.

     At this point, it should be said that there were substantial difficulties encountered during the hearing of the appeal in endeavouring to ascertain whether there was in fact any policy which applied in relation to the issue of the 1993, 1994 and 1995 permits.  There were continual assertions by both counsel that there was in force a policy.  Both the Tribunal and his Honour also assert that there was and the policy is described in his Honour's judgment.  I shall refer to that aspect of his judgment in a moment.  But I feel bound to say that I regard the whole of the material to which we were referred as confusing, uncertain and unsatisfactory.  How fishermen engaged in the ordinary day to day activities of their calling each with a substantial capital investment in a boat and equipment and having his or her livelihood substantially affected, adversely or otherwise, by the catch which a permit authorises understand what is occurring I do not know.  That, however, is by the way.  It does not help the resolution of this appeal.

     As mentioned, each of the appeals to the Tribunal failed.  The Tribunal took the view, in relation to the appeal concerning the 1993 permit, that the decision-making power of the delegate had been "exhausted" for the 1993 year so that there was no decision available for the Tribunal to review.  The delegate's decision in respect of the 1994 permit was affirmed as was his decision in respect of the 1995 permit.  It was from these decisions that the respondent appealed to the Court pursuant to s.44 of the Administrative Appeals Act.

     His Honour referred to the submission made by counsel for the respondent (the applicant before him) to the effect that the Tribunal had fallen into error because it had applied a policy which focussed exclusively on a vessel's catch history and had failed to take into account a consideration relevant to the exercise of its powers under s.32 of the Act.  This was the objective provided for in para. 3(1)(c) of the Act, namely, the maximising of economic efficiency in the exploitation of fisheries resources.  His Honour said that, to assess this argument, it was necessary to consider the nature of the formula governing the allocation of quotas applied by both the Minister and the Tribunal.  Both counsel for the then applicant (the respondent before us) and the Authority agreed that the formula could accurately be described as a policy applied by the Authority and the Minister to guide the exercise of the discretion conferred by subsecs 32(1) and (8) of the Act.  His Honour then referred to Mr Rohan's statement and set out the paragraph to which I have already referred.  His Honour added:

     "In his evidence in chief before the AAT, Mr Rohan described the 30% of the formula dependant upon boat units as a 'variable'.  However, this is something of an overstatement.  In fact, as Mr Rohan` acknowledged in his statement, each Danish seine boat was simply allocated a value of 100 for the purposes of the 30% of the formula said to be based on boat units."

     His Honour then referred to a paper, entitled the "South East Fishery Information Paper" which had been prepared in September 1993 by the Authority in conjunction with the Management Advisory Committee.  The paper stated the principles governing the allocation provisions in the following terms:

     "based on a combination of catch history and investment (boat units);

     catch history from 1984 to 1989 is used;

     averaging of catch history over relevant years;

     board trawlers, Danish seiners and particular species were assigned different catch history/investment weightings;

     for board trawlers - weighting of 50% catch history and 50% investment for orange roughy and blue grenadier, with a weighting of 80% catch history and 20% investment for all other species;

     for Danish sieners - weighting of 70% catch history and 30% investment for all species with each Danish seine operator considered to have the same number of units; and

     catch thresholds applied to determine whether boat units qualify in the allocation formula."

     His Honour said that, with some minor modifications, these principles were applied in the determination of quota entitlements for 1994 and 1995.

     His Honour continued:

     "In his submissions, Mr Roberts [counsel for the Authority] explained that the allocation of a standard value for boat units in relation to Danish seine vessels was derived from a formula in paragraph 11.7 of the Management Plan 1991.  (It will be recalled that para. 11 of the Management Plan was declared void in the Austral Fisheries Case.)  The formula in paragraph 11.7 was expressed in the form of a fraction, which was to be multiplied by 100.  The numerator of the fraction was fixed at 100 for vessels whose verified catch of the relevant species equalled or exceeded the threshold catch in any one year of the six year qualifying period (1984-1989).  For those vessels which did not achieve the threshold catch, the numerator was set at 85 if certain other conditions (not relevant to the present case) were met.  If none of the conditions was met, the numerator was zero, and the vessel received a zero boat unit component in relation to the particular species."

     His Honour said that the explanation given by Mr Rohan for adopting a uniform number of boat units for each Danish seiner was that, from 1987, the Danish seiner fleet was permitted to upgrade size and capacity without any alteration being required in the number of units allocated to each vessel under the 1988 Management Plan.  His Honour said that the consequence was that boat units allocated to particular vessels no longer reflected or, at least, necessarily reflected, size or power of each vessel.  Accordingly, the Wellington Cape, with 81 boat units, might or might not have had greater capacity to catch fish than another vessel with, say, 60 or 90 units allocated to it.  His Honour said that, by deciding to allocate a uniform number of units for each vessel, the Authority was relieved of the need to reassess the size and power of each vessel after the permitted upgrade.  His Honour said that certain propositions flowed from the use of the formula to determine quota entitlements for Danish seiner boats in relation to flathead and school whiting.  These were:

     "·   First, the 30% component of the formula, said by the Advisory Committee to represent "investment", does not, in fact, differentiate between operators according to their investment in the industry.  This is so whether investment is to be assessed by reference to the funds invested by a particular operator, or simply by reference to the capacity of the vessel.  All operators are treated in an identical fashion, provided they satisfy a low 'catch history' threshold in any one of the six qualifying years.

     ·    Secondly, the formula makes no attempt to measure the size and power of the vessels,
either during the qualifying period or during more recent periods, except perhaps insofar as some inferences as to capacity might be drawn from a particular vessel's catch history.  However, the catch history of a particular vessel is likely to reflect many factors other than capacity, including the vessel's need for repairs and the diversion of the vessel to activities other than fishing for flathead and school whiting.

     ·    Thirdly, as Mr Street [counsel for the then applicant, now the respondent] contended and Mr Roberts did not dispute, the formula, in substance, allocates quotas by reference to one criterion only:  catch history.  Thus the formula embodies a general policy that allocations of quota should reflect only the catch history of the particular vessels.

     ·    Fourthly, the exclusive focus on catch history as the criterion for allocating quotas for flathead and school whiting provides no guidance as to the respective efficiency of operators in obtaining their catch.  It is fair to say that a careful consultative process was undertaken in determining the appropriate means of assessing the catch history of each operator during the qualifying period.  But the exclusive focus on catch history means that the formula does not address the differing capacity of vessels, nor the resources devoted by operators to achieving their respective catches during the qualifying period.  Consequently, the formula, of itself, says nothing about the investment of capital and labour required by different operators to secure a particular quantity or value of fish in the SEF."

     His Honour said that the meaning of para. 3(1)(c) of the Act was to be ascertained by a process of statutory construction, not by the application of text book economics.  He thought that the paragraph was concerned, at least in part, with productive efficiency in the sense of maximising output at least cost to the operators of the vessels comprising the fishing industry which exploited the resources of the South East Fishery.  He said that the paragraph directed attention
to economic efficiency "in the exploitation of fisheries resources".  His Honour continued:

     "Fisheries resources are exploited, in the first instance, by catching fish.  They are also exploited by selling fish.  The criterion of economic efficiency doubtless requires attention to be paid to returns likely to be derived from the catch, since this is necessary to assess the economic rent derived by the industry.  But the criterion also requires that some attention should be paid to the resources - the capital and labour - required to produce the catch.  For example, an industry that relies on a relatively old and poorly equipped fleet, requiring a high labour input for a given catch, is presumably more costly and therefore less efficient than one which utilises modern, technologically advanced vessels.

     In my opinion, the difficulty with the formula applied by AFMA and the AAT in this case is that it pays no attention to economic efficiency, in the sense in which that term is used in s.3(1)(c) of the Management Act.  Quotas are allocated by reference to historical catch levels of particular vessels, regardless of the investment made and the resources required by those operators to achieve the catches during the relevant period.  The formula does not take into account the nature of the vessel or its equipment, nor the efficiency or otherwise of its operations, except insofar as these matters might have been reflected in the vessel's catch history.  Nor does the formula take account of the resources required for the vessel or its operator to achieve  a particular yield of fish (whether measured in value or weight) from the SEF, bearing in mind that quotas were allocated to operators some years after the relevant catch history period (1984-1989).  In effect, the formula is a means of dividing a limited natural resource among the operators who happen to have exploited it during a particular period.  The formula does this by calculating the respective shares of the catch that those operators enjoyed during that period.  The emphasis on catch levels presumably rewards operators with larger catches, but it does not necessarily reward past or current economic efficiency.  Nor does it penalise past or current economic inefficiency in exploiting the resources of the SEF.  Indeed, it is difficult to see how the formula itself is at all concerned with economic efficiency in the exploitation of the fisheries resources in the SEF."

     His Honour's references to AFMA and SEF are, of course, references to the Authority and the South East Fishery respectively.

     His Honour said that his conclusion was supported by an internal minute of 12 July 1995 prepared within the Authority in relation to the respondent's request for an amendment to the 1995 permit.  The minute noted that the Wellington Cape's allocation of 81 units under the old system of boat unit allocation was higher than the average of the fleet.  The minute pointed out that boat unit allocations did not necessarily reflect the fishing capacity or efficiency of other fleet vessels since, from 1987, they could be upgraded to 55 feet without the need to assign additional boat units to them.  But, so his Honour said, the Authority, having discarded a measure that, at one stage, might have provided some indication of relative efficiency, did not substitute another criterion that measured or recognised economic efficiency.

     His Honour went on to consider whether there was an error of law.  He referred to the decision of Brennan J (as he then was) when the President of the Tribunal, in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 and to well known passages in his Honour's decision which appear at 640-1 and 645.  His Honour referred also to a number of the cases in which Brennan J's observations have been applied by the Court.

     His Honour then said:

     "In my opinion, if attention is confined to the policy relating to the allocation of quotas, as embodied in the formula, that policy failed to take account of a relevant consideration, namely, the objective of maximising economic efficiency in the exploitation of fisheries resources.  In the present case, the policy was implemented by AFMA and the AAT, in relation to the 1994 permit, because the formula was used to impose quota conditions.  The policy was implemented by AFMA and the AAT, in relation to the 1995 permit, because they refused the applicant's request to vary the quota conditions, and did so on the ground that there was no basis for departing from the formula."

     His Honour referred to the judgment of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39 in which Mason J said that a decision-maker only failed to take into account a relevant consideration if he or she was bound to take that consideration into account when making the decision.

     His Honour then turned to the transferability of quotas.  Amongst other things his Honour said:

     "My reading of the documents prepared by or for AFMA, insofar as they appear in the appeal books, does not suggest that AFMA specifically considered whether the formula for allocation of quotas could be regarded as consistent with the objective of economic efficiency by reason of the transferability of the quotas.  In this respect, it is significant that the formula was used to allocate 1993 quotas even though for that year stringent restrictions were imposed on the transferability of quotas.  In 1994 and 1995, restrictions on transferability were eased, but the formula remained unchanged.  This suggests that introduction of the formula was not related to the free transferability of quotas.  Moreover, the reason given by Mr Rohan for allocating a uniform number of boat units was simply that operators had been permitted to upgrade their vessels without any need to acquire additional units to reflect the greater power or capacity of the upgraded vessels.  This explanation does not suggest that attention was paid to whether the objective of economic efficiency was served by a formula which is exclusively concerned with catch history."

     In conclusion, on the question whether the decisions under appeal involved the omission of a relevant consideration, his Honour said that he considered that the policy applied by the Authority and the Tribunal excluded such a consideration, namely, the objective expressed in para. 3(1)(c) of the Act.  He said his conclusion was not affected by the fact that in 1994 and 1995, quotas could be transferred to existing or new operators in the fishery.

     His Honour said that, in his view, the Tribunal erred in two respects.  It held that it lacked jurisdiction to review the Authority's decision to confirm the issue of a permit to the respondent for 1993 which imposed quota conditions.  His Honour, for reasons which he gave, considered that the Tribunal did have jurisdiction to review that decision.  That is not a matter which is the subject of appeal before us, but it should be mentioned that because his Honour thought that there was no utility in doing so, he did not think that any relief should be granted in respect of the 1993 permit.  More importantly he thought that the Tribunal had erred in that it had applied a general policy in relation to the respondent's 1994 and 1995 permits embodied in the formula for determining quota conditions which failed to take into account the objective of economic efficiency stated in para. 3(1)(c) of the Act.  Accordingly, he made the declarations and the order referred to at the commencement of these reasons.

     The submissions made on behalf of the appellant did not challenge the construction placed upon para. 3(1)(c) of the Act by Sackville J.  The construction his Honour adopted is supported by the terms of a policy statement released by the Minister in December 1989.  This policy statement was referred to in the second reading speech in which the Bill which became the Act was introduced; see Hansard for the House of Representatives, 6 December 1990, pp.4644 et seq.  Amongst other things the policy statement said:

     "The three overriding objectives of the management controls outlined in this policy statement are:

     ·    to ensure the conservation of fisheries resources and the environment which sustains those resources;

     ·    to maximise economic efficiency in the exploitation of those resources; and

     ·    to collect an appropriate charge from individual fishermen exploiting a community resource for private gain.

     Achievement of these objectives will create a stable economic and biological environment in which fishermen can operate with greater confidence and economic security.

     Management controls which maximise economic efficiency involve a lower level of fishing effort and lower costs than in an uncontrolled situation, and in virtually all cases are also consistent with the biological sustainability of the resources."

     Paragraph 1.2 of the statement is headed, "Scope of policy statement".  It is there said:

     "The Government recognises that commercial fishermen as entrepreneurs aim to maximise profits.  It also recognises the propensity for fisheries to attract excess investment, resulting in over-exploitation and reduced profitability.  The Government's aim in managing fisheries is, therefore, to create conditions where the reasonable business aspirations of fishermen can be attained while safeguarding the fishery resource."

     From these statements it may be seen that a principal aim of the policy was to balance the need for conservation and, at the same time, to have regard to the reasonable business aspirations of fishermen.  That would be achieved by maximising economic efficiency in the exploitation of the fishery.

     Reference may also be made to the Report, "Fisheries Reviewed", published in December 1993 by the Senate Standing Committee on Industry, Science, Technology, Transport, Communications and Infrastructure.  Appendix E to the Report is a summary of the policy statement.  The Committee said that the thrust of the "Policy Document" was subsequently incorporated into the legislative package establishing the Authority and its functions; see at 107-8.

     Counsel for the appellant conceded that his Honour was correct in stating that the allocation formula itself did not take account of economic efficiency.  The objective of the formula, so counsel said, was to provide an equitable allocation of available quota among those who were considered to be existing stakeholders in the Fishery.  Counsel said that the allocation formula, however, was but one part of an overall policy.  The overall policy took into account all the objectives in s.3 of the Act.  Counsel submitted that it was wrong to divide up the policy into constituent parts as Sackville J had done, and then to enquire in relation to one part of the policy whether it fulfilled a particular objective in s.3.

     The difficulty I have with this submission lies in the use of the word "must" in the subsection and, in conjunction with that, the linking of each of the five objectives with the word "and".  In my opinion that means that each objective must be pursued by the Minister and by the Authority.  It is only possible to find out whether that has happened in a given case by analysing the decision which has been made and reaching a conclusion on whether each of the objectives has been taken into account.  It is not possible to undertake that exercise compendiously.  To do so runs the risk that one of the objectives which the Minister is obliged to pursue may be omitted.  The only way in which the exercise can be performed is by looking at each objective individually.  No doubt there will be cases in which the Minister may give varying degrees of weight and emphasis to this or that objective.  So long as each objective is pursued, there will be no breach of duty. 
But if one of the objectives is not pursued at all, then that will not be the case.

     Something was said during the course of the argument about the fact that the provisions of s.3 laid down objectives.  The section is not couched in language which expressly says that the Minister or the Authority must take into account particular matters.  Such a provision is not uncommon in a variety of Acts of Parliament.  But, in my opinion, the position is no different because the objectives under s.3 must be pursued by the Minister and the Authority in the administration of the Act, so far as the Minister is concerned, and by the Authority in the performance of its functions under the Act.  One of its functions is to grant permits under s.32. 

     Counsel also said that the creation of individual transferable quotas was an integral step in maximising economic efficiency in the exploitation of the resources of the Fishery.  The creation of quotas permitted operators to adjust their fishing capacity through the purchase and sale of quotas with the effect of maximising individual efficiency.  Cost efficient operators would be expected to purchase quotas from less efficient operators who would leave the industry.  In this way, the amount of fishing inputs used to take the allowable catch would be reduced and overall economic efficiency increased.  Restrictions on the transfer of quotas were imposed in response to uncertainty resulting from the combination of reviews and court challenges that followed the introduction of the system and were a temporary measure.

     In my opinion, this submission does not answer the criticism of what was done made by his Honour nor does it answer the respondent's submissions.  I see little point to the statement that restrictions were introduced in response to uncertainty resulting from reviews and court challenges.  If decisions are not being made according to law, they ought to be reviewed and, as necessary, set aside.  As to the more substantial part of the submission, I do not gainsay that it would be possible to give effect to para. 3(1)(c) of the Act by instituting a system which took account only of catch history, nor do I gainsay that it may be possible to achieve that end by creating a situation in which economically weaker operators would sell and leave the field.  That is not, however, how I perceive the material which was before the Tribunal.  It seems to me to be more consistent with a situation in which the Authority had to deal with a number of existing operators in the fishery who stood to lose substantial amounts of money and their livelihoods as a consequence of taking into account boat units which were designed to reflect the investment made in equipment and which would have given effect to the objective mentioned in the policy statement of encouraging the efficient operation of operators.  Taking account only of catch histories, and long past catch histories at that, would be unlikely to have the effect contended for by counsel.  Of course, the appeal lies only on a question of law and it is, I think, for the respondent to demonstrate that a material consideration, namely the requirements of para. 3(1)(c) of the Act, as omitted from account.  But I think the totality of the material which was before the Tribunal, particularly the evidence given by Mr Rohan, tends to demonstrate that that is indeed what occurred.  A further pointer to that being the case is so much of the decision of the delegate earlier quoted as dealt with the respondent's contention that the allocation formula used was unfair and resulted in significant financial disadvantage.  What the delegate said seems to me to run counter to the general thrust of counsel's submission.

     Then it was said on behalf of the appellant that there was no necessity for the appellant to "prove" that the objectives in s.3 were taken into account in formulating the overall policy "particularly as it was never an issue in the proceedings" in the Tribunal.  That it was not is common ground.  Counsel also said that the case put in this Court on behalf of the respondent was only tangentially related to the issue of economic efficiency which had been isolated by Sackville J in his judgment.  Counsel said that the case put by the respondent at first instance in this Court focussed on the individual economic circumstances of the respondent.  It was said that the respondent did not have sufficient quota to be economically viable and therefore the economic efficiency objective in s.3 was not fulfilled.

     I am prepared to accept that that was the case and the fact that it was is the occasion for the concern I expressed at the outset of this judgment about whether this case was properly brought as an appeal to the Tribunal rather than as an application for judicial review under the Judicial Review Act.  I shall say more of this in a moment.

     I do agree that there was no necessity for the appellant to prove that the objectives in s.3 were taken into account in formulating the overall policy.  It was not incumbent on the appellant to prove anything.  But the conclusions I have drawn have come, not from any absence of evidence on the part of the appellant, but from a consideration of the totality of the material which was before the Tribunal.  Furthermore, it is not correct to say, as the submission does, that the case put by the respondent before Sackville J focussed on the individual economic circumstances of the respondent.  Counsel for the respondent handed up a copy of the written submissions which had been made to his Honour.  Paragraph 8 of those submissions fairly raises, in my opinion, the point now being considered.  The submission said that the boat units for Danish seiners were effectively ignored by all being deemed to have a value of 100.  The consequence was that the specific value in engine and hold capacity of the specific Danish seiner, the economic investment in the vessel and the equipment, was ignored and the allocation of quota occurred by the selective history of a particular vessel for a particular species of fish.  This was said to be contrary to the notion of boat units permitting differentiation between Danish seiners and contrary to the legislative objective of economic efficiency.  The point upon which the respondent succeeded was therefore taken before the primary Judge.  It is true to say, however, that it does not appear to have been taken before the Tribunal.  We were referred to para. 41 of the Tribunal's decision in respect of the 1993 and 1994 licences.  It was suggested that that indicated that the submission now relied upon had been made to the Tribunal.  Having read the paragraph, I regret to say that I am unable to find in it any indication that such a submission was made. 

     Finally, counsel for the appellant said that, if the Authority were required to attain economic efficiency in the Fishery through the allocation process, this would necessarily involve the allocation of quota to the lowest cost operators with the most profitable fishing operations.  In practice, the Authority could only hope to achieve this aim through the auctioning of quota as the most efficient operators would be expected to value the quota most highly.  But counsel said that that approach was fraught with problems of equity for those operators already established in the Fishery.  In my opinion that submission takes the matter no further.  The whole question is whether economic efficiency has been taken into account.  It does not appear to me that it was and that is the end of the matter.  As I have said, there may be other ways of taking the objective in question into account.  For present purposes it is enough to say that it seems patent to me that it was not taken into account in formulating the policy which everybody seems to agree existed and in applying that policy to the circumstances of this case.

     It follows that I am in agreement with Sackville J in relation to the approach he took.  That leaves the question whether it was appropriate for the respondent to seek review of the decision by way of the Administrative Appeals Act rather than the Judicial Review Act.  As I have indicated, I have misgivings about this matter.  My concern is that the real complaint which the respondent has is to be found in the Authority's decisions rather than in those of the Tribunal.  No point based on this matter was taken by counsel for the appellant.  Counsel did complain that the matter had not been taken in the Tribunal and also submitted - I have indicated that I would reject the submission - that the point was not taken before his Honour.  But counsel made it quite clear that his client was not prejudiced by the taking of the point for the first time before Sackville J nor would it have been prejudiced, as I understood the submission, if the point had been taken for the first time by his Honour himself after he reserved his decision.  This was because the appellant had had every opportunity of raising the matter before this Court and because it did not suggest that, if the matter had been raised before the Tribunal, the evidence would have come out any differently from the way it did.

     In those circumstances I think that the view should be taken that there is no problem concerning the course which the respondent took in appealing to the Tribunal.  On that basis the decisions of the Tribunal, although the matter was not dealt with by it, can be said to reflect an error of law warranting the setting aside of its decisions.

     In the result the appeal should be dismissed with costs.

     I certify that this and the forty-four (44) preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Sheppard.

     Associate

     Dated:  18 December 1995

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)    No. G815 OF 1995

GENERAL DIVISION                  )

                   ON APPEAL FROM A JUDGE

              OF THE FEDERAL COURT OF AUSTRALIA

              BETWEEN:           AUSTRALIAN FISHERIES

                                  MANAGEMENT AUTHORITY

                                  Applicant

              AND:               F W ADAMS PTY LTD

                                  Respondent

CORAM:        SHEPPARD, TAMBERLIN & LEHANE JJ

PLACE:        SYDNEY

DATED:        18 DECEMBER 1995

                    REASONS FOR JUDGMENT

TAMBERLIN J:

I agree with the conclusions and orders of Sheppard J in this matter.

In my view the error of law, which requires that the matter be remitted to the Tribunal, is that in making the decision to allocate quota to the respondent, considerations of the size and power of the Danish seiner boats, were excluded from consideration. This exclusion was said to arise from a practice which had developed of treating all Danish seiners as having the same unit equivalent and thereby neutralising any differences between those boats when determining the allocation of quota.

The decision as to the allocation of quantities of fish to be available to the respondent was clearly done in the administration of the Fisheries Management Act 1991 ("the Act").

As such it was a decision which required that there be taken into account the objectives of the Act as set out in s 3(1) and (2). In my view, it is necessary in pursuing an objective directed to maximising economic efficiency in the exploitation of fisheries resources, to consider the size and power of the boats used in the relevant fishing operations and by so doing to consider the amount of investment made by those engaged in the fishing operations.

That is not to say that controlling or determinative weight needs to be given to such a consideration. Matters of boat size and power are among a number of relevant factors to be considered and weighed when making the decision. The weighing process and the weight assigned to any particular factor is for the decision maker. But to exclude matters of boat size and power from being given any consideration or weight, at all by assigning 100 units to all Danish seiners is to commit administrative error.

A construction of the Act leading to a conclusion that these matters were mandatory considerations is strongly reinforced by the references, set out in the judgment of Sheppard J, concerning policy statements issued in relation to the administration of the Act. In particular, the reference in the 1989 policy statement to "lower levels of fishing effort and lower costs" supports the conclusion that it is relevant to take account of boat sizes, power and investment costs of those engaged in fishing operations.  There is clearly a strong public interest in ensuring that fishing operations are carried out in an economically efficient manner so as to improve returns and incentives to the operators and to augment the potential for lower prices to the consumer.

The question was raised in the hearing as to whether the statement of mandatory objections in s 3 necessarily produces the result that each objective needs to be considered in respect of every decision taken by the Authority in the performance of its functions.  There can be no single general answer to this question because it will depend, as Lehane J has pointed out, on the nature, level and importance of the particular decision being taken. However, in the present case, the objective set out in s 3(1)(c) is sufficiently specific and can be seen to be relevant to the important decision concerning allocation of fish quantities so as to give rise to a mandatory requirement that it be given proper consideration.

It is not difficult to envisage some statements of broad legislative objectives which are so nebulous as to be incapable of any sensible application to a particular decision made in the administration of the Act. For example, a provision to the effect that regard must be had to an objective that the Act is designed to promote "the better regulation and control of the fishing industry" would be such a non-specific and nebulous objective. However, that is not the present case. The objective under consideration here is capable of a more specific meaning from which it can be discerned that matters relating to boat size, power and investment therein, are intended to be relevant matters which cannot be automatically excluded as a matter of policy from consideration when making decisions on individual allocations under the Act. That is what happened in the present case.

Accordingly, the appeal should be dismissed.

I certify that this and

the preceding three (3)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

Associate:

Date:             18 December 1995                                                             

IN THE FEDERAL COURT OF AUSTRALIA           )

NEW SOUTH WALES DISTRICT REGISTRY         )

GENERAL DIVISION                                                )                                     No. G815 of 1995

                                On appeal from a Judge of the Federal Court of Australia

                                    BETWEEN:   AUSTRALIAN FISHERIES MANAGEMENT AUTHORITY

                                                                                                                                        Applicant

                                    AND:              F.W. ADAMS PTY LTD

                                                                                                                                     Respondent

CORAM:       Sheppard J, Tamberlin J, Lehane J

PLACE:          Sydney

DATE:            18 December 1995

                                                  REASONS FOR JUDGMENT

LEHANE J:  I have had the opportunity of reading, in draft, the judgment of Sheppard J.  I agree with the orders proposed by his Honour and, subject to one matter, with his reasons.

Counsel for the appellant argued that if a scheme, or policy, is one which is formulated taking into account economic efficiency it is not necessary that each individual decision, in implementation of the scheme or policy, be preceded by a separate consideration of that and the other statutory objectives.

I think that argument may well be right, in the sense that there are likely to be levels of decision‑making where separate consideration of each objective is unnecessary or
inappropriate.  There may also be decisions to be made by the Minister in administering the Act, or by the Authority in performing its functions, to which, because of the character of the particular decision, one or more of the statutory objectives are irrelevant.

That, however, is a topic which I think need not be pursued any further in this case because it seems to me inescapable that the establishment and implementation of a policy for the allocation of rights to fish in the South East Fishery involve the making of decisions at a level requiring pursuit of the statutory objectives and of a character to which the particular objective of economic efficiency is clearly relevant.  Thus, while it might be true that there are, in the terms of counsel's submissions, subsidiary decisions in relation to which it is not necessary to have a regard to the objective of economic efficiency, the matters with which we are concerned are in my opinion plainly not of that kind.

                        I certify that this and the preceding 1 page are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

                        Associate: 

                        Dated:  18 December 1995

                                                              APPEARANCES

Counsel for the Applicant:                                 A.W. Street, P.S. York

Solicitors for the Applicant:                   Thomson Rich O'Connor &

                                                                                     Coleman

Counsel for the Respondent:                 D.M.J. Bennett QC,

                                                                                     P. Roberts

Solicitors for the Respondent:                Australian Government

                                                                                     Solicitor

Date of Hearing:                                               1 December 1995

Place of Hearing:                                              Sydney

Date of Judgment:                                             18 December 1995